Lord Crisp

Sir Edmund Nigel Ramsay Crisp, KCB, having been created Baron Crisp, of Eaglescliffe in the County of Durham, for life—Was, in his robes, introduced between the Baroness Prashar and the Lord Adebowale.

Lord Teverson

Robin Teverson, Esquire, having been created Baron Teverson, of Tregony in the County of Cornwall, for life—Was, in his robes, introduced between the Lord Wallace of Saltaire and the Lord Dholakia.

Children: Parental Alcohol Use

Lord Adebowale: asked Her Majesty's Government:
	What steps they are taking to ensure that the needs of children whose parents misuse alcohol are addressed.

Lord Adonis: My Lords, the National Alcohol Harm Reduction Strategy led by the Home Office aims to minimise the harm caused by alcohol, and it includes a work theme on young people and parents. The Children Act 2004 places on local authority children's services departments a duty to protect children from significant harm, including harm from alcohol-misusing parents. We are also grateful for Turning Point's recent report. Officials from my department look forward to discussing it with its authors in the next few weeks.

Lord Adebowale: My Lords, I thank the Minister for that encouraging reply. Given that nearly five times as many children are affected by parental alcohol misuse as suffer as a result of parental misuse of illegal drugs, will the Minister consider setting up an inquiry to look into the issue?

Lord Adonis: My Lords, we look forward to discussing the report with the noble Lord, but at the moment we are not minded to set up an independent inquiry. I should point out that services in this area have improved. We are spending £270 million on specialist alcohol treatment services, and there are nearly 700 treatment services in England. The Department of Health is about to produce a national service framework on models of care for alcohol misusers. It will set out the framework for the commissioning and provision of interventions for adults affected by alcohol misuse, including the impact on children. We recognise the importance of further work in this area and believe that we are taking it forward.

Lord Taylor of Blackburn: My Lords, is the Minister aware of the equal concern among parents about the misuse of alcohol by their children? The effect is just as great on them as it is the other way round. Is the Minister doing anything about that?

Lord Adonis: My Lords, my noble friend is right. A proper understanding of how to use and not misuse alcohol is part of PSHE teaching in schools.

Lord Forsyth of Drumlean: My Lords, a database for every child in the country is being set up at a cost of more than £240 million. Would it not be more sensible to concentrate resources on the vulnerable children of alcoholic parents and so on? Has the Minister seen the comment by the Deputy Information Commissioner that responding to a problem of looking for a needle in a haystack by making the haystack bigger is rather silly?

Lord Adonis: My Lords, we have debated many times the information-sharing database and the important work of ensuring that services are provided for vulnerable children. We still believe that that database is important to ensure that children and their families receive the support that they need. We do not see it as an either/or situation; we need better support for alcohol sufferers and proper information for service providers in respect of vulnerable children.

Baroness Walmsley: My Lords, does the Minister agree that the most important aspect of services to such children is that they are properly joined up? Does he also agree that the best way of finding out whether they are properly joined up and serve the children in the way that they need is to ask children themselves? What are the Government doing about that?

Lord Adonis: My Lords, I agree with the noble Baroness. On joined-up services, the new common assessment framework, used by children's social services departments when assessing the needs of families for specialised services, includes the impact of alcohol misuse. As regards the voice of the child, which is important, we are funding work with the voluntary sector specifically in this area; for example, STARS, a charity that does very good work, runs a national network of practitioners who help substance-misusing parents, including those who misuse alcohol. It has its own website, a chat room and other facilities specifically to ascertain the voice of children, many of whom are very adversely affected.

Baroness Howe of Idlicote: My Lords, what extra help can the Government make available that might enable grandparents to take on a more active parenting role in such sad circumstances?

Lord Adonis: My Lords, I am sure that grandparents have a very important role in this respect. The assessments that social services departments make should, of course, take account of the role that other family members can play when parents are not capable of fulfilling their responsibilities seriously.

Baroness Morris of Bolton: My Lords, substance abuse and mental illness in parents is often kept secret for fear of social services intervening and breaking up a family. How does the Minister propose to reach and to help those children? What are the Government doing to address the chronic shortage of specialised social workers for children?

Lord Adonis: My Lords, we are funding charities such as STARS precisely to deal with areas where parents and their children do not wish to come forward to the public authorities. They work in collaboration with the National Association for Children of Alcoholics, Alcohol Concern and other such organisations which work apart from the state. As the noble Baroness knows, we are putting significant new incentives in the system to recruit more and better social workers to deal with the public side of these activities.

Lord Elton: My Lords, I presume that the database referred to is the national database for children at risk of non-accidental injury. There is some question about whether Scotland, Wales and Northern Ireland are all included in it. They should be, because of the mobility of parents—not particularly alcoholic parents, but parents who are inclined to injure their children—from one region to another. Has that problem been resolved?

Lord Adonis: My Lords, I think that the database referred to by the noble Lord was the information-sharing database, which is different, although it interacts with equivalent databases in other parts of the United Kingdom.

Ministerial Code

Lord Campbell of Alloway: asked Her Majesty's Government:
	Whether they will consider an amendment to the Ministerial Code to enable advice to be given by an independent body as to the ethics of non-financial conduct.

Lord Bassam of Brighton: My Lords, the Government's position on the appointment of an independent panel of investigators remains as set out in the response to the ninth report of the Committee on Standards in Public Life. The Government have appointed Sir John Bourn to provide advice to Ministers on the handling of Ministers' private interests, as set out in Section 5 of the Ministerial Code.

Lord Campbell of Alloway: My Lords, I thank the Minister for his response. Why should the code not be amended to enable advice such as that referred to in the Question to be tendered by either the Committee on Standards in Public Life or the Public Administration Committee, which are concerned with ethical regulatory frameworks? Have the proposals of Members of another place on policing this code—spoken to by the noble Lord, Lord Campbell-Savours, on 15 May—been seriously considered by anyone?

Lord Bassam of Brighton: My Lords, we take these matters very seriously; it is simply that the Government have taken a different view on how to proceed with them. The Prime Minister must ultimately be held to account for the actions of his Government, and he has taken the view that we do not need to set up a panel as the noble Lord suggests. That does not rule out the possibility of occasionally asking individuals outside the Government to conduct specific investigations into allegations of ministerial misconduct, as has happened in the past. The Prime Minister continues to believe it best to do that on a case-by-case basis.

Lord Maclennan of Rogart: My Lords, is not one of the benefits and virtues of prime ministerial government the possibility of summary justice in appropriate cases? In days when Britain ruled the waves, Voltaire sapiently observed that from time to time the English,
	"shoot an admiral, to encourage the others".
	Might the Prime Minister bear that in mind?

Lord Bassam of Brighton: My Lords, I think the noble Lord has been practising that one—it must be his birthday today and I ought to congratulate him. I am sure that the Prime Minister will take the noble Lord's careful advice very carefully.

Lord Tebbit: My Lords, when I asked a Written Question on whether the Permanent Secretary in the Deputy Prime Minister's department had given the Deputy Prime Minister any advice concerning his conduct towards civil servants, consulted the head of the Civil Service about what advice he should have given, or informed the Prime Minister of any concerns about the conduct of the Deputy Prime Minister, the Answer given was that all those were private affairs. Surely that cannot be true. Why, in addition to that non-reply, was I referred to an earlier reply relating to the use of the Deputy Prime Minister's motor car? It was nothing to do with the Question that I had asked. Why cannot the Government answer Questions any more?

Lord Bassam of Brighton: My Lords, I am sure that the noble Lord, when he was a Minister, answered Questions in a precise manner, and I would expect nothing less from him. Those were the Answers, however, and he will have to continue to be dissatisfied with them or pursue a different line of questioning. The matter is a private one and has been best dealt with in that light.

Lord Howe of Aberavon: My Lords, I wonder whether the Minister is familiar with the observation of Edmund Burke that,
	"Manners are of more importance than laws",
	and so with the concept of,
	"'obedience to the unenforceable', where people do right although there is no one and nothing to make them do right but themselves".
	Is that not a far better path to go down than endless codification? Would it not be much better if Ministers and others were governed in that way, rather in the way in which, almost every day, this House manages to govern itself?

Lord Bassam of Brighton: My Lords, in general terms, I think that Edmund Burke was absolutely right. I am one of those who subscribe to the principle that self-regulation is the best form of regulation. However, there is for ever the pressure to regulate and establish things by rules. I am sure that the noble and learned Lord, in his time in government, has been as guilty of that as the rest of us.

Lord Tebbit: My Lords, the Minister surely cannot escape this. What advice the Permanent Secretary gave to the Deputy Prime Minister may be a private matter, but whether or not he gave advice cannot conceivably be a private matter. That is a public matter. It must be a public matter. Why do the Government pretend, in order to protect the Deputy Prime Minister, that it was a private matter?

Lord Bassam of Brighton: My Lords, the issue itself was considered a private matter.

Lord Howe of Aberavon: My Lords, on the point that the Minister put to me, perhaps I may ask him whether he is not also aware that, far from being a compulsive codifier, I can take credit, for example, for the abolition of pay, price, dividend and exchange controls—all steps in the right direction?

Lord Bassam of Brighton: My Lords, I am grateful to the noble and learned Lord for that reminder. I am sure that his record in government bears no comparison.

Israel and Palestine: Road Map

Lord Blaker: asked Her Majesty's Government:
	What is their assessment of the future of the Middle East road map.

Lord Triesman: My Lords, Her Majesty's Government are committed to assisting both sides to achieve a negotiated, two-state settlement based on the principles laid out in the road map. We call on both Israel and the Palestinian Authority to work towards that aim, and we believe that negotiation must be the preferred route. We remain committed to the vision of two states, Israel and Palestine, and the establishment of a just and lasting peace.

Lord Blaker: My Lords, I welcome that reply, and I hope that the road map will be a success. Is not one of the most relevant questions whether Abu Mazen, the president of the Palestinians, will hold the referendum that he is contemplating on the document produced by Palestinian prisoners in an Israeli jail? The document's emphasis regarding relations with Israel is on political action rather than force, which is rather surprising, considering its origins. In addition, given that recent opinion polls on the West Bank show a majority for mutual recognition and Abu Mazen's two-state solution, is it not regrettable that the Israeli Prime Minister has described Abu Mazen's proposal as "meaningless"?

Lord Triesman: My Lords, we welcome the national dialogue launched by President Abbas on 25 May. We hope that the outcome will be positive, whatever anybody else says about it. We hope that Hamas will take the opportunity to change its position. We support President Abbas's work to secure that. The noble Lord is right to remind us of what is called "the prisoners' accord" because that document was signed by militants from a number of groups, including Hamas, which suggests that it may provide a route worth exploring.

Baroness Northover: My Lords—

Lord Archer of Sandwell: My Lords—

Lord Rooker: My Lords, if the House wishes to hear from my noble and learned friend Lord Archer and from the noble Baroness, Lady Northover, there is plenty of time.

Lord Archer of Sandwell: My Lords, would my noble friend agree that it is impossible to negotiate with people who say that they will not settle for anything less than your extinction? Is it not essential to progress, therefore, that the Palestinian Government should recognise Israel's right to exist?

Lord Triesman: My Lords, the basis of any successful negotiation is bound to be mutual recognition of the right to exist. The demands made on the Hamas Government—we accept that they were legitimately elected, and that is no reflection on the election itself—to recognise Israel's right to exist and agree to proceed with the peace accords and the agreements struck by the Palestinians in the past are fundamental for further progress.

Baroness Northover: My Lords, is the Minister concerned that the Israeli Prime Minister has described the 1967 green line as an indefensible border for Israel? Is the contiguous, viable Palestinian state that the Israeli Prime Minister has also called for, which is very welcome, feasible if the green line is not accepted as the border between the two countries?

Lord Triesman: My Lords, we have made it clear from the outset that drawing any line that makes it difficult or impossible to produce a contiguous Palestinian state will be a significant setback for the road map and any negotiations towards a final settlement. We have also said that we believe that the wall is illegal. I do not know that the Government can add to that. We make that point to the Israelis week by week.

Lord Clinton-Davis: My Lords, does my noble friend agree that no peace is possible until the Hamas-led Government adhere to the view that Israel must be recognised? In that way, progress can be made.

Lord Triesman: My Lords, I will not repeat the point that I made. That is plainly our position.

Lord Trimble: My Lords, does the Minister welcome the meeting last Thursday between Prime Minister Olmert and President Abbas—I believe it was a very warm meeting—and the clear statement afterwards by Prime Minister Olmert that he not only foresaw a Palestinian state that was clearly an entity in itself but looked forward to negotiating the border with Palestinians and wanted to do it sooner rather than later?

Lord Triesman: My Lords, I am wholly in accord with the sentiment reflected there. The priority is negotiations. A final disposition of the matter will be incomparably harder to achieve without a negotiating process that leads all the way up to it. The renunciation of pieces of land has had some positive impact, but it is not a substitute for proper negotiation resulting in a proper final settlement.

Lord Howell of Guildford: My Lords, is there not a sense in this miserable situation of going around in circles? Has not the quartet again called, as it has many times before, for the Palestinian authority to commit to the principles of non-violence, recognise Israel and accept previous agreements, including the road map? Where will those calls lead? Three sides are now involved: Hamas and Al Fatah fighting each other, and the Israeli Government seeking to negotiate but not finding anyone to do it with. What practical moves can we possibly make next in a situation that seems to be getting worse and worse, not better and better?

Lord Triesman: My Lords, the quartet's statement on 30 January, which established the principles on which the noble Lord has just refreshed our memory, remains the decisive bargaining position of all those seeking to intervene to achieve peace in the Middle East. The experience of Government after Government in this country has been that you have to persist in arguing for the things that you think are right and in gradually achieving, even inch by inch, some progress. I understand the noble Lord's point, but one cannot argue for a volte-face to some other position, because no other position would be correct. We will continue to put pressure on all parties. There were some signs, frustrated immediately, that Hamas was beginning to entertain some of that discussion, as have its prisoners.

Lord Dykes: My Lords, will the Minister accept that Hamas may be more persuaded to do that if the Israelis made reciprocal actions at the same time, as they have done with the release of a very limited number of detainees, held usually without due process? The British Government have also made several representations on this line. Would it not be a good idea for the British Government again to press the Israeli Government to consider further releases of detainees? There are about 8,000, most of whom are held without trial, which, pro rata for the UK population, is virtually twice the entire prison population of the UK.

Lord Triesman: My Lords, I see no difficulty in continuing to express the view that confidence-building measures by the Israelis will help in the process, but they are also entitled to make sure that their security is respected and that the people released are not antagonistic and liable to launch further attacks on them. That is a perfectly reasonable position that I believe anybody in the United Kingdom would take for our own country. However, as the noble Lord, Lord Howell, said, the quartet's position is also fundamental—renunciation of violence, mutual respect for the establishment of two states and an obligation to abide by previous peace agreements. All those are essential. In my estimation, confidence-building will do nothing if people cannot agree to the basic principles.

Lord Clarke of Hampstead: My Lords, does my noble friend agree that recent events such as the terrorist attack on the Israeli military establishment may make it more difficult for the Prime Minister of Israel to convince the people of his country that the realignment plan is in their best interests? As the House knows, the realignment plan is to allow 90 per cent of the Occupied Territories to be returned. Does my noble friend further agree that current attacks on innocent civilians by those terrorists are incompatible with phase 2 of the road map?

Lord Triesman: My Lords, I deplore attacks on innocent civilians on either side. The attacks that have taken place on Israel are certainly disturbing. The attack on the Sufa crossing has unquestionably led to greater instability in the past weekend. It may well have set back a rather promising initiative taken by President Abbas of the Palestinian Authority. Those steps make the problems deeper. We make that point to both sides repeatedly.

Retirement Age

Lord Sheldon: asked Her Majesty's Government:
	What consultations they are undertaking in connection with the review of the default retirement age.

Lord Sainsbury of Turville: My Lords, on 9 March this year, we published a survey of employers' policies, practices and preferences relating to age. That will provide a baseline for assessing the impact of the Employment Equality (Age) Regulations 2006. Once the legislation has bedded in, we intend to carry out a follow-up survey to inform the review of the default retirement age in 2011. We will consider what further consultation may be necessary as we draw closer to 2011.

Lord Sheldon: My Lords, I thank my noble friend for that reply. Does he not agree that during the next 30 or 40 years life expectancy is likely to increase very much more than it has done in the past 20 years and that account must be taken of that? Although an age of retirement for personal pensions may be arranged, people must be free to decide their age of retirement to meet their circumstances. That is an essential part of retirement provision for the future.

Lord Sainsbury of Turville: My Lords, I agree. The regulations provide for an employee to challenge a retirement age, and the employer must give serious thought to that. We think that the default retirement age will be temporary. If in 2011 we decide that it is no longer necessary, we will of course abolish it.

Baroness Greengross: My Lords, does not the Minister agree that a default age of 65 goes right against the spirit of the Government's policy and the recommendations of the Turner commission's report on pensions reform, both of which are designed to encourage people to stay longer in work? That demands more flexible working patterns, not a rigid default retirement age, which could be seen as discriminating against older workers.

Lord Sainsbury of Turville: My Lords, the regulations cover two situations. One is where the retirement age is below 65. That needs to be justified objectively. That is one move forward. The other, as I just said, is that employees now have the right to challenge a retirement age, and the employer must give that serious thought. We are making progress, but strong representations were made by industry that there would be difficulties for workforce planning and an impact on various other social issues if there was no default retirement age. It therefore seems right to keep a default age and review it in 2011.

Lord Oakeshott of Seagrove Bay: My Lords, will the Minister accept my personal thanks that I am no longer at risk of compulsory retirement from my day job next January, due to the Government's action? Will he also accept that we should work longer because we want to, not because we have to, and that far too many people in this country are having to work because their pension fund has collapsed or, especially in the case of women, they had only a rotten pension in the first place?

Lord Sainsbury of Turville: My Lords, I totally agree that people should have the opportunity to retire when they want to, which is what the legislation is about. Personal circumstances and whether someone has the ability to retire is another question. That is obviously of concern to everyone.

Lord Marlesford: My Lords, given the demographic situation in the United Kingdom today, what should the retirement age be now to have a balance between the working and the retired populations?

Lord Sainsbury of Turville: My Lords, I would have thought that the answer depended on the level at which we wanted pension benefits to be set for people's retirement. The much more profound issue is whether people should have the ability and the choice to make trade-offs between the length of their working life and the benefits that they receive.

Lord Skelmersdale: My Lords, the state pension age will exceed fairly shortly the default retirement age about which the Minister is talking. In those circumstances, is it not likely that people between the ages of 65 and 69 will want to work part time? Have the Government considered whether partial pensions should be payable in those circumstances?

Lord Sainsbury of Turville: My Lords, the point of having the default retirement age for five years and then reviewing it is that, before we take final decisions on it, we want to see what the various implications of it are and what impact it has on working patterns and what people want to do. That seems to me to be immensely sensible. There could be all sorts of unintended consequences of removing the retirement age, so it is sensible to have a period in which we have the default retirement age and then to review it in 2011.

Lord De Mauley: My Lords, how do the Government justify having a different pensionable age for the Civil Service than for the rest of the population?

Lord Sainsbury of Turville: My Lords, the Question is about the consultation on the retirement age in 2011. The noble Lord's question relates to a different issue.

Administration and Works Committee

Lord Brabazon of Tara: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That the Baroness Hollis of Heigham be appointed a member of the Select Committee in the place of the Lord Dixon.—(The Chairman of Committees.)

On Question, Motion agreed to.

National Minimum Wage Regulations 1999 (Amendment) Regulations 2006

Lord Rooker: My Lords, I beg to move the Motion standing in the name of my noble friend Lady Amos on the Order Paper.
	Moved, That the draft regulations be referred to a Grand Committee.—(Lord Rooker.)

On Question, Motion agreed to.

Education and Inspections Bill

Lord Adonis: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That it be an instruction to the Committee of the Whole House to which the Education and Inspections Bill has been committed that they consider the Bill in the following order: Clauses 1 to 6, Schedule 1, Clauses 7 to 17, Schedule 2, Clauses 18 to 29, Schedule 3, Clauses 30 to 35, Schedule 4, Clauses 36 to 50, Schedule 5, Clauses 51 to 63, Schedule 6, Clause 64, Schedule 7, Clauses 65 to 70, Schedule 8, Clause 71, Schedule 9, Clauses 72 to 78, Schedule 10, Clauses 79 to 104, Schedule 11, Clauses 105 to 107, Schedule 12, Clauses 108 to 141, Schedule 13, Clauses 142 to 148, Schedule 14, Clause 149, Schedule 15, Clauses 150 to 152, Schedule 16, Clauses 153 to 160, Schedule 17, Clauses 161 to 169, Schedule 18, Clauses 170 to 176.—(Lord Adonis.)

On Question, Motion agreed to.

Housing Corporation (Delegation) etc. Bill

Lord Davies of Oldham: My Lords, I beg to move the Motion standing in the name of my noble friend Lady Andrews on the Order Paper.
	Moved, That the Bill be committed to a Committee of the Whole House.—(Lord Davies of Oldham.)

On Question, Motion agreed to.

Enterprise Act 2002 (Disqualification from Office: General) Order 2006

Lord Sainsbury of Turville: My Lords, I beg to move.
	Moved, That the draft order laid before the House on 18 April be approved [24th Report from the Joint Committee] [Considered in Grand Committee on 19 June].—(Lord Sainsbury of Turville.)

On Question, Motion agreed to.

Childcare Bill

Read a third time.
	Clause 3 [Specific duties of local authority in relation to early childhood services]:

Lord Adonis: moved Amendment No. 1:
	Page 3, line 13, at end insert—
	"(4A) In discharging their duties under this section, an English local authority must have regard to such information about the views of young children as is available to the local authority and appears to them to be relevant to the discharge of those duties."

Lord Adonis: My Lords, this government amendment requires local authorities to have regard to information about the views of young children when carrying out their duties under Clause 3 to develop early childhood services. We debated this issue at length in Grand Committee and again on Report. The Government have listened to the arguments of many noble Lords on all sides of the House, but particularly to those of the noble Baroness, Lady Walmsley, who has taken a keen interest in this matter. We are completely at one on the objective to promote the voice of the child. I am delighted that we have been able to frame a suitable amendment for noble Lords' consideration.
	As I made clear in Grand Committee and on Report, the Government are committed to ensuring that the voices of even our youngest children are heard and are taken into account. It has always been our intention that statutory guidance should carry forward and build on the precedent already set by the current children's centre practice guidance, which sets out ways to explore what young children really think about their settings.
	The amendment enables us to go further. As the House knows, our concern was to do this in a workable way. I am pleased to say that, following discussions between my department and the National Children's Bureau, we believe that with this amendment we have found an effective way forward. The amendment requires local authorities to have regard to information about the views of young children where that is relevant in carrying out their duties under Clause 3. It will encompass all aspects of the design, delivery and development of early childhood services. However, by drafting the requirement in this way, we avoid the risk that local authorities will be compelled to try to engage young children on matters where meaningful consultation is simply not possible.
	I believe that this amendment strikes the right balance. We all know how easy it is for adults to make faulty assumptions about what is important to young children and what they feel. However, we also recognise that young children are much less likely to be able to understand and have views about the implications of strategic planning decisions—for example, how Jobcentre Plus or NHS services can most effectively be integrated within the delivery of early childhood services across the whole local authority area.
	In seeking to ascertain the views of young children, local authorities may undertake their own surveys or research, or they may use existing mechanisms—for example, the Listening as a way of life series of leaflets published by the NCB on behalf of Sure Start. Other voluntary organisations also have significant experience in this area and will be able to help to take this forward. I hope that the House will welcome this amendment, which is very much a response to our earlier debates on the Bill. I beg to move.

Baroness Walmsley: My Lords, certainly for my part—and, I hope, on behalf of all noble Lords who have been pressing for this—I thank the Minister for listening and for his lengthy consultations with the NCB. The amendment will serve everyone's purpose and will not put unreasonable duties on local authorities. I very much welcome his confirmation that local authorities will be able to do their own research, rather than just relying on research done by other people, and his commendation of the Listening as a way of life practice developed by the NCB for Sure Start.
	I hope that the guidance will encourage local authorities to realise that there are very few areas where it would be inappropriate to consult even very young children. If they try it, they will find that they like it and that it is a very worthwhile exercise. I thank the Minister for this. It will make a big difference to the way in which local authorities view consulting young people.

Baroness Massey of Darwen: My Lords, I, too, thank the Minister for his assiduity in securing this amendment and for listening so well to all the concerns. I very much welcome the amendment. It will please a great number of people, including the very many children's organisations that have worked over many years in support of the voice of the child and the views of young people. The Government have established a good reputation for encouraging listening to young people. For example, the views of young people were paramount in Every Child Matters, which has ended up being a very good document that will be useful to us all for years. Listening to the voice of the child and the young person strengthens legislation, policy and all our work with children. Again, I thank the Minister for taking that into account.

Baroness Morris of Bolton: My Lords, from these Benches I, too, thank the Minister for his introduction to the amendment and for his commitment to work towards this following our excellent debates at all stages of the Bill. I am happy that the Government have worked with the National Children's Bureau towards the inclusion of the voice of the child in the Bill. We all agree that there is a fine balance between consulting children and burdening them with decisions beyond their years, but in this amendment we believe that the Government have struck the right one.

Baroness Howe of Idlicote: My Lords, I certainly join everyone else in congratulating the Government on having responded so effectively. However, can the Minister give me a little reassurance on a question that I asked last week: will the same powers regarding children be available in the Education and Inspections Bill?

Lord Adonis: My Lords, in a Delphic passage of my Second Reading speech on the Education and Inspections Bill, I said that issues would be raised by this amendment for that Bill. I meant that, and we are considering the implications. However, the issue is not entirely straightforward. For example, almost all secondary schools and an increasing proportion of primary schools have schools councils, a development that we thoroughly welcome and to which we have given strong encouragement, including in the Education Act 2002. Geoff Whitty, director of the Institute of Education at the University of London, is conducting a review of how we can develop further our guidance in respect of schools councils, so there are other issues which need to be considered that are distinct from those related to provision for the under-fives. However, I recognise that we need to consider the implications of one Bill for the other, and we will do so.
	On that basis, I seem to have managed to unite the House at least at the beginning of our proceedings. I hope that that continues throughout our consideration of the later amendments.

On Question, amendment agreed to.
	Clause 6 [Duty to secure sufficient childcare for working parents]:

Baroness Walmsley: moved Amendment No. 2:
	Page 4, line 22, at end insert—
	"( ) must have regard to the quality of childcare provision and its suitability for the communities living in their area, and"

Baroness Walmsley: My Lords, during the deliberations on this Bill in this House and in another place, we have all agreed that quality is a very important issue. EPPE research has, along with all the other reputable researchers, found incontrovertible evidence that quality childcare is in the child's best interests; poor-quality childcare is not and can even do harm. Several noble Lords tabled a range of amendments seeking to include the word "quality" among the duties being laid on local authorities by this Bill. Clause 6 provides a duty on local authorities to secure sufficient childcare for working parents, and Amendment No. 2 would add to that, so that in doing so local authorities would have to have regard to the quality of childcare provision and its suitability for the communities in their area.
	On 12 June, in responding to a similar amendment of mine, and to those of other noble Lords, the Minister confirmed in many of his comments that the Government are seeking to improve quality by ensuring that,
	"provisions and levers are in place to ensure that the quality of childcare is not compromised".
	He referred to the early years foundation stage, which,
	"sets out clearly the quality standards that we expect providers to meet and against which Ofsted will inspect. For provision for children over the age of five, the Ofsted childcare register will also require providers to meet specific quality standards, including staff qualification levels and adult-to-child ratio requirements".—[Official Report, 12/6/06; col. 39.]
	I salute all this, but it seems to cut out the local authority. Clause 11 puts a duty on local authorities to assess childcare provision and, while it does not mention the word "quality", the Minister made it clear at col. 40 that the guidance will require them to assess the quality as well as the quantity of provision. One might think that this assessment should actually come first in the Bill, since you must do an assessment before you are able to see where there are gaps, and then carry out your duty to secure sufficient childcare if there are any gaps in provision.
	The Minister relies heavily on Ofsted inspections as a guardian of quality. However, I believe that around 90 per cent of early years settings achieve "satisfactory" or better in their inspection. This must tell us that there is a range of quality above the level of satisfactory. If local authorities have a duty to secure in their areas provision that has "quality" in its description, that must be a driver for them to seek ever better provision. There is a flaw in the logic that requires Ofsted to inspect quality without putting a duty on local authorities to secure it.
	The Minister said that my earlier amendment,
	"would not only duplicate the existing role of Ofsted . . . but return us to the position before Ofsted took on the role of childcare inspection in 2001, when each local authority made its own judgments on quality and standards were not consistent around the country".—[Official Report, 12/6/06; col. 39.]
	But I am not seeking to remove the duties of Ofsted in this respect, so there is no way that I am seeking to return to the situation before it took over its role. Nor am I seeking to duplicate its role. The Minister cannot have it both ways. I cannot both duplicate it and take it away in one fell swoop.
	Instead, I am seeking to ensure that the local authority makes some judgment about the quality of settings in its area during the process of making its assessment of sufficiency. In doing so, it will take into account the views of Ofsted on each of its local settings. It will look at the Ofsted reports. A few of them may not be satisfactory; some of them will be just satisfactory; and some of them will be excellent. Should not the local authority, armed with that information, be seeking to make all of them excellent? Should it not also be consulting parents and children as well as staff in making its own assessment? You cannot ask a local authority to assess quality during its sufficiency survey and then not put a duty on it to secure quality in all the local provision.
	The Minister relied on the link between Clauses 6 and 11 and said that,
	"only childcare that adheres to the standards for registration by Ofsted will be eligible for tax credits".—[Official Report, 12/6/06; col. 40.]
	But not all parents will receive tax credits and the Minister has assured us that provision must also be made for unemployed families. So that argument is not valid, either.
	I shall say only a few words about the second part of my amendment. There are many different localities in our country, some of which have a particular ethnic or cultural group represented heavily within them. Children need to have their culture considered in the provision of childcare; that is very important as regards their sense of self. I believe that recognising that on the face of the Bill as an important duty for local authorities will send out the right message to all our communities. Quality is the key to this country moving forward in childcare provision—we all believe that. I believe that as a matter of principle it should be put on the face of the Bill and not only in guidance. It is that important. I beg to move.

Baroness Morris of Bolton: My Lords, I support the amendment. As the noble Baroness, Lady Walmsley, said, we have had long and detailed debates on quality throughout the passage of the Bill. Gillian Pugh, in the book Contemporary Issues in the Early Years, states that the issue of quality has been discussed in every book on early childhood services during the past decade and has to be seen as a complex process rather than a tidy set of outcomes.
	However, just because something is complex does not mean that we should shy away from it. In Grand Committee, I attempted to define a measure of quality by referring to a 2004 National Audit Office report that identified the following indicators of quality: adult/child interaction that is responsive, affectionate and readily available; well trained staff who are committed to their work with children; facilities that are safe and sanitary and accessible to parents; ratios and group sizes that allow staff to interact appropriately with children; supervision that maintains consistency; and staff development that ensures continuity, stability and improving quality. In addition, of course, we have Ofsted, which the noble Baroness, Lady Walmsley, has covered in detail.
	But, whatever measure is used, I find it quite extraordinary that a Government who are always talking about high-quality childcare fail to put the word "quality" anywhere on the face of the Bill. The amendment would do much to allay the fear of many that the provision of sufficient and appropriate childcare by local authorities is in danger of becoming a tick-box activity.

Lord Adonis: My Lords, we are completely at one with the two noble Baronesses on the importance of quality childcare. In fact, the Bill makes explicit provision for that; the noble Baroness, Lady Morris, is quite wrong to suggest that it does not. Clauses 25, 50 and 61 all specifically mention the word "quality" and the structure of the early years foundation stage has quality running all the way through it, so it is not correct to say that quality is not central to what we are seeking to achieve.
	Our argument against this amendment, which is why we will continue to resist it, is that there is no point in having one quality regime in place only to duplicate it and have another quality regime running alongside. The noble Baroness, Lady Walmsley, must have misunderstood me when she said that I was seeking to argue on the one hand that there was duplication and on the other that we were taking the role away from Ofsted. I was not for a moment suggesting that we should take the role away from Ofsted; it will stay with Ofsted. That role was given to Ofsted and taken away from local authorities, which had their own separate quality regimes until a few years ago. Therefore, if it stays with Ofsted, it will by definition be duplicated under the amendment.
	I am particularly surprised that the noble Baroness, Lady Morris, supports the amendment, because we believe that it will impose two quality regimes on providers, which will place a big set of new, additional burdens on them, particularly on private and voluntary sector providers, who may be less well equipped to meet additional burdens than state providers. Yet the noble Baroness says all the time that she is concerned about the degree of burden and the cost of enforcement obligations that we are placing on these providers. We cannot have it both ways. Either we want only the level of bureaucracy and red tape that is essential to maintain quality, or we go down the road of putting superfluous and duplicated obligations on providers, which will add to red tape. Once they are aware of it—they are not aware of it at the moment but they will become only too well aware of it if this regime is put in place—substantial concern will be aroused among the very private and voluntary sector providers about which the noble Baroness claims to be concerned.
	So far as quality is concerned, Part 3 of the Bill sets out the requirement on providers caring for children under the age of five to deliver the early years foundation stage. The Early Years Foundation Stage, the consultation document which I have circulated to noble Lords, sets out very clearly the quality standards that we expect all providers to meet and that Ofsted will inspect against. Its opening words in paragraph 1 say that,
	"the framework aims to increase coherence, provide a flexible approach to care and learning and raise quality throughout the Early Years Sector".
	Ofsted's duties could not be clearer in respect of quality in the Bill. Clause 31 says:
	"The Chief Inspector has the general duty of keeping the Secretary of State informed about . . . the quality and standards of regulated early years provision in England".
	Clause 50 states that individual reports on early years provision must include a,
	"report in writing on . . . the quality and standards of the early years provision",
	and Clause 61 states that, in respect of reports regarding later years provision,
	"the Chief Inspector may make a report in writing",
	on matters that he considers appropriate, including "the quality and standards" of that provision. Quality is mentioned throughout the Bill directly in those clauses and in the early years foundation stage, which has its force under the Bill.
	For provision for children over the age of five, the Ofsted childcare register will also require providers to meet specific quality standards, including qualification levels and adult-to-child ratio requirements. For providers not required to register, the requirements for receiving income from tax credits and the Ofsted endorsement which parents recognise and value will be major incentives in encouraging registration and quality.
	In respect of tax credits, Clause 6 requires local authorities to have particular regard to the need to secure sufficient childcare that is eligible for the childcare element of the working tax credit. Childcare will be eligible for tax credits only if it is operating to the standards set by Ofsted. Ofsted will be able to inspect all such provision to ensure that it is meeting those required standards. Furthermore, Clause 13 gives local authorities the powers and duties to provide information, advice and training to any providers or potential providers to help them to improve the quality of their care and meet the set requirements. This will include training on how to deliver the early years foundation stage, health and safety information and advice on how to ensure that care is accessible and inclusive. So if a provider is not delivering the high-quality care that parents expect, the local authority will be able to help them to improve.
	Similarly, with reference to the second half of the noble Baroness's amendment, if quality means suitability, Clauses 6 and 11 work together to ensure that the childcare needs of parents are understood and assessed and that action is then taken to meet those needs. By assessing the market through their Clause 11 duty, local authorities will be able to gain a good understanding of the standard of local childcare provision and the views and satisfaction of local parents. They will then be able to use this information to plan and secure sufficient childcare that responds to the needs of parents. As I said repeatedly in Grand Committee and on Report, care will not be deemed sufficient to meet the needs of parents if it is not suitable. By this, we mean suitable for all who need it in a locality, including black and minority ethnic families, disabled children, lower-income families or those who live in rural areas.
	We have considered this amendment very carefully, but there is no avoiding the fact that putting this duty on local authorities would inevitably require local authorities to assess the quality of provision, which could well lead to a duplication of the existing role of Ofsted. Worse, it could lead to two different inspection regimes operating on the same providers, which could particularly adversely affect the independent and voluntary sectors. Therefore, we do not feel able to accept the amendment.

Baroness Walmsley: My Lords, I thank the Minister for his reply. Can I just clarify one thing? I understood him to say at the beginning of his remarks that my amendment would take away the role of Ofsted. I hope that he is clear about my understanding of that.

Lord Adonis: My Lords, it does not take away the role of Ofsted, but it does duplicate it.

Baroness Walmsley: My Lords, I think that on Report the Minister said both, but let us leave that aside for the moment.
	The suggestion that local authorities can assess the quantity of childcare without assessing the quality verges on the ridiculous. Without this amendment, the local authorities could do something as simple as saying, "In street A we have 100 places, in street B we have another 100 places, and in street C we have another 100 places, so the total is 300 places"—it could be just a totting-up exercise or a number-crunching exercise. At the very least, the local authority would have to check that each early years setting has a satisfactory Ofsted report. I hope that putting the word "quality" into the Bill, as I am trying to do today, would mean that the local authority would do a good deal more than that—but at the very least, it would have to do that.
	The Minister mentioned the private and voluntary sector, which is very much behind this amendment. People from the sector are very anxious that local authorities should understand the need for quality and are very distressed that Ofsted is not to look at the quality assurance programmes that many of them have in place. These are very much the drivers of ongoing improvement in the early years sector.
	The word "quality" may appear in some of the later clauses, but it is vital that the concept is more than implicit in all parts of the Bill, especially where we refer to local authorities' duties. It seems inconceivable that local authorities could carry out the duty to assess sufficient childcare without taking quality into consideration. It is very difficult to understand why the Minister does not feel able to accept this amendment, knowing the commitment that he has to improving childcare in this country and the commitment that the Government have put behind it in the form of money. For those reasons, I must test the opinion of the House.

On Question, Whether the said amendment (No. 2) shall be agreed to?
	Their Lordships divided: Contents, 117; Not-Contents, 121.

Resolved in the negative, and amendment disagreed to accordingly.
	Clause 7 [Duty to secure prescribed early years provision free of charge]:

Baroness Morris of Bolton: moved Amendment No. 3:
	Page 5, line 6, at end insert—
	"( ) Regulations under this section must allow for private, voluntary and independent providers of childcare to provide for between—
	(a) two and a half or three hours per day at the choosing of that provider, and
	(b) thirty three or thirty eight weeks per year at the choosing of that provider."

Baroness Morris of Bolton: My Lords, as I explained in Committee and on Report, this amendment inserts a new subsection into Clause 7 to allow for a degree of flexibility and choice for the private, voluntary and independent sectors regarding the number of hours and total weeks they may provide as a minimum free entitlement. Paragraph (a) addresses the number of hours a day to be provided and paragraph (b) the number of weeks.
	I hope noble Lords will not mind, as this is Third Reading, but I think it important to go right back to the beginning and explain the situation so that we know where we are on the amendment. Originally, free entitlement to nursery provision for three and four year-olds was two and a half hours a day or 12 and a half hours a week for 33 weeks. From April this year, the number has increased to 38 weeks. From April 2007, the minimum free entitlement will be extended to 15 hours a week—three hours a day—with an objective of providing 20 hours a week free by 2010. That free provision is paid for by the nursery grant, but it is widely recognised by the industry that the grant goes nowhere near covering its costs, especially in the south of England, and the situation will only get worse with the extension of free provision.
	To help bridge the gap between the money received from the Government and the reality of providing good, high-quality care, it is almost universal practice for providers already to offer three hours a day of care, with two and a half hours free, and then to charge a top-up fee for the extra half hour, which goes some way to covering costs. From April 2007, that will not be allowed, and although providers will receive extra nursery grant for the extra half hour, it will not be enough. Half an hour may not seem a great deal of time, but there are a lot of half hours in 38 weeks.
	I explained on Report that some local authorities were requiring private, voluntary and independent providers to extend their weeks from 33 to 38, while others were not enforcing that as long as parents were aware that they were entitled to 38 and that it was available with other providers. I pointed out, and the Minister accepted, that it would be impossible for some providers to extend their number of weeks because of the different types of premises they occupy, often sharing the facilities with other organisations. However, the pressure to conform is increasing.
	I was therefore most encouraged when the Minister said:
	"The duty to ensure sufficient 38-week places is a duty placed on local authorities, not providers, and the availability of provision in a local area should be delivered in accordance with parental demand. Therefore, as long as local authorities can provide sufficient 38-week places for those parents who want them, either through individual providers or in collaboration between providers, there should be no need for them to put undue pressure on providers to deliver places only over 38 weeks, when there is also a market among parents for a provision over a lesser period".
	He went on to say:
	"We also acknowledge that some parents may take an informed decision to choose a provider that is open for fewer than 38 weeks. We have therefore made clear in the code of practice that in these circumstances providers should be funded for the free provision that they deliver. So it is not an all-or-nothing approach for the 38 weeks, even over the medium term".—[Official Report, 12/6/06; col. 57.]
	I was most grateful to the Minister for clarifying that on Report. However, following Report, it became clear to me that although the issue of the number of weeks may have been addressed, the biggest anxiety still remained—the increase in free hours per day from two and a half to three. I had a meeting with the Minister, for which I am most grateful, following which, last Thursday evening, representatives from Montessori met officials from the DfES to discuss the issue. It is a shame that because of our debate on child poverty, which was delayed by a Statement, the Minister did not have the chance to be there. I welcome the fact that the Government are prepared to listen on this issue, although I am not sure that they are hearing the implications of what is being said. The truth is that if small PVI nurseries lose the ability to charge top-up fees and have a degree of flexibility on the increase in the number of hours and weeks proposed for free entitlement, the service that they provide will not be sustainable.
	The Government's own figures show that 94 per cent of daycare providers are in the PVI sector. Surely we should nurture that resource, not squeeze and threaten it. But, in a typical case in south London, in a school which has always opened its doors to special needs children, the income from the grant does not even cover the basic staff costs of the nursery school. Rent, insurance, taxation, school equipment, food and drink, transport and trips, administration, accountancy, legal expenses and all profit—some of which is negative for the provider—are all paid out of the top-up fees. Without top-up fees, a precious educational resource will either close or go private and leave partnerships with local authorities. What does that do for parental choice in childcare?
	I understand that the message from the meeting was that there was no option but a total extension of free entitlement across the board. But why? If Sure Start centres are to be opened up across the country, they will provide the free entitlement. Why cannot the PVI sector provide the free entitlement and charge the top-up for the rest, as long as it is made clear to parents that there is a choice between the two options? I believe it was also suggested at the meeting that perhaps some way could be found to sustain nurseries that would be hit in such a way. But how would they be sustained—with more public money? Is that not just an extension of the state rather than the proposed working with the private, voluntary and independent sector?
	From the new figures I have seen, I am not sure that the department will be so willing to cover the shortfalls in the system that will only increase without top-up fees. I have seen figures that range from £25,000 to £95,000 a year for each setting. I welcome the fact that the department's officials have asked for detailed statistics and have said they will consider the issue. But surely that is doing things the wrong way round. This situation should have been investigated when designing the free entitlement extension, not after the fact or after the Bill.
	We have welcomed the Bill in principle and yet many of its details are causing great concern. At a time when morale in the sector should be high, Montessori and other providers are reporting that it is low across the country. Although Montessori brought this issue to our attention and is leading the argument, it is by no means alone. Barbara Isaacs, the head of Montessori in the UK, in a letter to the Minister which was copied to me, asked for local authorities to be able to relax the enforcement of the new system, to allow top-up fees to continue and to allow the nursery grant to be paid on a pro-rated basis depending on the hours and weeks of delivery, which is what our amendment would deliver. She ended her letter with a passionate plea. She said:
	"Montessori never sought to standardise or regulate the learning of a young child; she would have utterly recoiled from that philosophy. Montessori taught us to celebrate and enable variety. Please do not let teachers and thousands of children in Montessori schools down by failing to listen to this cry for help and understanding in this, our centenary year".
	I beg to move.

Baroness Walmsley: My Lords, this is a matter of the sustainability of some private and voluntary settings. I have visited more than one setting where the staff have been very distressed about a situation which is already affecting them whereby some families want the full provision now, but cannot afford the top-up fees, and the nurseries are letting them use the facility at their own expense. As the noble Baroness, Lady Morris, has just clearly explained, the grant does not fully cover the costs.
	So long as all children who are entitled to the full provision are able to obtain it somewhere in the local authority area or somewhere appropriate if their parents require it, I see no reason why we should not allow this level of flexibility in order to sustain some very worthwhile settings. I hope that the Minister will think again about this.

Lord Adonis: My Lords, I was very surprised by the noble Baroness's contribution because I thought that she would join us in not wanting to see a two-tier system where there were some settings that people could go to only if they could afford to pay a substantial fee. We are seeking to ensure that free provision is free provision. If we enable this essentially wrecking amendment to be made to the Bill, we will have a two-tier system where the free provision of 15 hours a week, 38 weeks of the year is available to some parents who are able to pay a fee but not to those who are unable to pay where a fee is imposed for some elements of that free provision. We on this side of the House stick by our commitment that the provision should be free.
	We are working with the private and voluntary sectors to deal with all the issues that the noble Baroness, Lady Morris, raised, but we see a fundamental point of principle here. We have given a commitment that the provision should be free for up to 15 hours a week, 38 weeks of the year in settings which offer that level of provision. But we are not prepared to see a dual regime of free provision in some settings and top-up fees in others, which may be precisely the settings which are most relevant and accessible to parents who cannot afford to pay the fees. So I hope that the noble Baroness, Lady Walmsley, who I thought was with us on this issue, does not allow charging to be introduced into the Bill, as we believe that that would go to the heart of the regime for an increased free entitlement for all parents in the country.
	We recognise that there is a duty on the state to see that this system is properly funded. We have put a substantial sum of money into extending the provision to 38 weeks a year, and we have given a firm commitment in the comprehensive spending review that we will look at how we raise it to 15 hours a week. That will be done over a number of years; this is not, in any case, an immediate reform. The Pathfinder authorities are also looking at precisely this issue of sustainability.
	If we allow two different regimes to be established, let us be absolutely clear that we will not be talking about a free entitlement to provision for 15 hours a week, 38 weeks of the year but about a two-tier system whereby the wealthy will be able to get into some settings and the free entitlement will be restricted to other settings. That would go against the fundamental principle of what we have been seeking to achieve—that is, a substantial and increased level of universal provision. We do not find that an acceptable situation, so we will continue to resist the amendment.
	None the less, it is a matter for providers to decide what they charge for hours outside the free entitlement. There is nothing to stop a provider deciding to charge over and above that free entitlement and, once this regime is fully in place, it will be entirely free to do so over the 38 weeks and over the 15 hours. Providers that offer some element of the entitlement that we are describing as free must be prepared to offer it all if they are open for the 15 hours a week, 38 weeks of the year.
	There is no requirement on providers to do that—they are entirely free to operate outside the state-subsidised system. If they wish to go entirely private, they can do so, but they cannot claim to offer a free entitlement when in fact they are offering only part of it and are therefore disadvantaging the very parents who are most vulnerable, who will not be able to pay the fees and who may well be faced in their localities with providers that will not offer the 38 weeks and the 15 hours but will do so only if parents are prepared to pay what could be, in many cases, a substantial fee.
	We are absolutely at one with the need for flexibility in allowing suppliers to open for fewer than 38 hours a week, particularly at the beginning of the phased introduction of the longer entitlement. We are certainly prepared to accept flexibility. We are also working on the Pathfinder projects at the moment, and it will be a number of years before we get to the full 15 hours in any event. However, we do not think that it is acceptable to put in legislation a two-tier system that enables charges to be introduced. That goes to the heart and principle of the Bill—which is that there should be an increased universal free entitlement to under-fives provision.

Baroness Howe of Idlicote: My Lords, I hope the Minister can answer a question for me at this rather late stage. As I understand it, this extra half hour will be made available to the very children who need it most and made available free. As I understand the amendment, it is very much to ensure that all these schools do not go out of business because of the huge cost, which can be paid for by those who can afford it.

Lord Adonis: My Lords, we have been working with Montessori and others to analyse costs. It is not our view that those businesses would go out of business. It is a matter of conjecture what will happen in a number of years when we see the available funding and this entitlement extended. However, if we allowed this regime to take effect, parents would definitely be faced in some circumstances with fees—possibly substantial fees—in order to access part of the entitlement that, in the Bill, is regarded as free for other settings. We do not regard that as an acceptable situation. It could lead to a situation in which the only setting in an area available for the very children about whom the noble Baroness was talking was one that charged fees for this additional provision. That would have the effect of closing that provision to the very children who need it most.

Baroness Morris of Bolton: My Lords, I thank the Minister for his reply; the noble Baroness, Lady Walmsley, for her remarks; and the noble Baroness, Lady Howe of Idlicote, for clarifying matters. This is most emphatically not about a two-tier system and it is not a wrecking amendment. The Minister said that nothing would stop these settings charging outside the free entitlement, but that is what is happening now. They give not only the free entitlement of two and a half hours but three hours. That allows them to have the very children whom the Minister and the noble Baroness, Lady Walmsley, were talking about. They do not want to operate outside the system. They want to be part of the system. I do not think that the Government realise how much they have affected the dynamics of the childcare market, or to what extent a sector that until 1999 was relatively stable is now uncertain.
	The Minister says that the Government are working with people in the sector and that it will be able to cope. Perhaps I may, without giving away the name of the lady or the nursery, quote an e-mail that is a plea for help and advice. She says:
	"I have a Montessori School in the Midlands. We have been running for 11 years and ever since the introduction of Nursery grants, we have charged the children the difference between our fees and the nursery grant. Today I have had a very strong letter from the Education Department of our council stating that we are absolutely NOT allowed, directly or indirectly to charge the children anything for 5 two and a half hour sessions. They have threatened the auditors to come in next year, if they think we are charging anything. The way things are financially, our income next term would only be enough to pay the rent and 1 staff's wages. Basically, we would have to close in 3 weeks time, if we do not charge. I am writing in desperation to ask if you are aware of any solution to this problem".
	If the Government really believe in choice and diversity of provision, they cannot stand by and enact legislation that will achieve the exact opposite. I do not doubt for one moment the Government's good intentions. However, we are dealing here with the law of unintended consequences. Perhaps the noble Baroness, Lady Walmsley, after hearing the Minister's remarks, will not support me in a vote, but I would like to think that I had done my best for people who have been providing childcare for 100 years. It might just concentrate the mind of the Government a little more. I should therefore like to test the will of the House.

On Question, Whether the said amendment (No. 3) shall be agreed to?
	Their Lordships divided: Contents, 114; Not-Contents, 126.

Resolved in the negative, and Motion disagreed to accordingly.
	Clause 13 [Duty to provide information, advice and training to childcare providers]:

Lord Northbourne: moved Amendment No. 4:
	Page 8, line 6, at end insert—
	"( ) An English local authority must, in accordance with regulations, make information, advice and training available on request to persons who provide or intend to provide on a regular basis care for a child who is a grandchild or other close relative and who is not resident with them."

Lord Northbourne: My Lords, what I seek from the Government is some modest support for grandparents and other close relatives, with whom a child does not live but who regularly provide childcare for him or intend to do so. Approximately 5 million grandparents today regularly provide some childcare for their grandchild at no cost to the state. Many make big sacrifices to free themselves to do this work. Some parents contribute to the costs, some cannot.
	Information, advice and training made available to grandparents could have several outcomes which would promote the Government's Every Child Matters agenda. For example, it would encourage some grandparents whose parenting skills are a bit rusty to take a refresher course. For those grandparents who sadly have never had the opportunity to learn the skills of parenting, it could break into that dreaded cycle of disadvantage and inappropriate parenting in some families. If good grandparental care is available, it is likely to reduce the demand for professional care, which is much more expensive for the state to provide.
	On Report, in response to my amendments, the noble Baroness disclosed that information, advice and training to be offered to childcare providers under Clause 13(1) is to be restricted by regulations to relate only or mainly to,
	"business support and sustainability and registration".—[Official Report, 12/6/06; col. 63.].
	If that is correct, it is depressing. I have to say that that report in Hansard is slightly at variance with what the noble Lord said this afternoon about the intention of regulations in Clause 13(1). It is incredibly difficult to make a useful contribution to a Bill of this sort without the regulations before us. We do not know what it is all about.
	Can it really be true that resources are to be diverted to giving child carers and future carers business advice but not helping them to do the job itself—the job of caring for the nation's children? However that may be, it does not affect my amendment as there is no reason that the information, advice and training given to grandparents under Clause 13(1)(a) should be governed by the same regulations as those for professional childcare. Regulations relating to Clause 13(1)(a) concerning grandparents could provide for grandparents to be given the services they need and deserve.
	Concern has been expressed by the opposition parties about the possible cost of the amendment to local authorities. I believe that the amendment involves no irrevocable commitment to expenditure because the regulations could provide that all or part of the cost could be recovered from those who use the services.
	The Government expressed on Report their admiration and respect for the often selfless care carried out by grandparents caring regularly for their grandchildren. The approximately 5 million grandparents who provide such care will be watching the response to this debate to see whether the Government really mean what they say. I beg to move.

Baroness Howarth of Breckland: My Lords, as the unlikely founder of the Grandparents' Association, and along with the members of the all-party group, I support the noble Lord, Lord Northbourne. I shall of course wait until I hear what the Minister has to say in reply, but one issue is all-round costs and resources. I know of literally hundreds of families where grandparents look after their grandchildren. Very few of them are likely to avail themselves of local authority services. Most of them are extended families, which, despite all myths to the contrary, still exist in this country. We know that from the amount of care that is given. However, there are a few which may very well need help, support and training. Indeed, I would hope that those families, which are often known to social services, would be encouraged to accept that help, support and training.
	I hope that that is what the Minister will say in reply. If so, I will be happy. But if grandparents cannot receive help when they need it, I shall be duly disappointed.

Baroness Howe of Idlicote: My Lords, perhaps inadvertently, I acted in a John the Baptist role to the amendment, because I asked the Minister about extra help that could be given to grandparents. Although I support the view in the amendment, I am especially concerned that those grandparents or other relatives who could be of tremendous help in keeping children within a family setting, which everyone wants, have access to other forms of help to enable them to do the job.
	For example, for someone who was getting lame, arrangements could be made for the children to be picked up, taken to school and brought back. I am not suggesting that that should necessarily be a huge charge on the local authority. That might be in combination with the activity of volunteers and so on. From all that I have heard from parents and others concerned, such practical help would enable many more relatives to take the active part that we all think would be better for the family unit than to have foster care, however good. I very much hope that that will be taken into account.

The Earl of Listowel: My Lords, I, too, support the amendment. If I may, I remind the Minister of the speech welcomed by the whole House during last week's debate on child poverty made by his colleague, the noble Baroness, Lady Hollis of Heigham, when she said that many poorer families do not trust local authorities to provide care for their children but trust the grandparents. Everything that can be done to support grandparents in minding children would, in her mind, help children out of poverty and allow mothers into work.
	I was unable to attend the debate on the Question asked by the noble Lord, Lord Adebowale, about parents who are regularly intoxicated, but there is concern about substance-misusing parents. Perhaps the amendment offers another opportunity better to support those grandparents who have a child who is suffering from those problems and who need to take in the grandchild.

Baroness Morris of Bolton: My Lords, as I have said in all our debates, I am a passionate advocate of the vital role of the extended family, particularly of grandparents, in bringing up and looking after family members, both young and old. Kinship care is probably one of the oldest forms of childcare, making up about 70 per cent of informal childcare. Again, in a number of debates, I have shared and listened to views from other noble Lords about the success of kinship care where children would otherwise have gone into social services care. These children often have complex needs, but the help and support of their grandparents can prevent them becoming looked-after children in the care system. This only supports the call by the noble Lord, Lord Northbourne, for information to be provided to the extended family in support of its role, particularly in childcare.
	We on these Benches are very sympathetic to the idea of kinship care, and we are taking the time to consider it in more detail. I have already told the noble Lord, Lord Northbourne, that we will not be able to support him if he presses his amendment to a vote because we feel that there would be a spending implication, albeit a small one. I do hope, however, that the Minister will be able to give the assurance that the noble Lord is seeking.

Baroness Walmsley: My Lords, like the noble Earl, Lord Listowel, I, too, had in mind the Question asked earlier today by the noble Lord, Lord Adebowale, about the families in which the parents are either alcoholics or drug addicts. In many of those cases, the grandparents will have the burden of looking after the children. Yet they will not be considered to be the primary carers and will therefore not have the rights to training, information and advice that the primary carer with the parenting role would have.
	On the other hand, I am also very aware that many grandparents say that children are very different today and that things were different in their day. Many grandparents, faced with the job of looking after one of today's young people for extended periods, would greatly benefit from hearing from experts about the latest thinking on child development and how children have to face a very different world today from the one the grandparents faced when they were growing up or when they brought up their own children. There are many advantages to allowing grandparents to have access to the help, advice and information that is available to other people in the role of a parent.
	This is a very modest amendment in the direction in which the noble Lord, Lord Northbourne, would really like to go eventually. It would not preclude the local authorities from making a modest charge for these services if there was an additional financial burden. I really do not think there is anything in it that would prevent them making such a charge. I see no major spending commitment in an amendment such as this one, so I really do commend it to the Minister.

Baroness Crawley: My Lords, I have listened very carefully to noble Lords who have spoken. There is a great deal of support for many of the concerns expressed by the noble Lord, Lord Northbourne. I have also listened very carefully at different stages of the Bill to the noble Lord promoting this amendment or versions of it. Although I still do not agree that Clause 13 should be amended—its focus is on formal childcare and the needs of formal providers—I hope that I can further assure him and other noble Lords on Clauses 1 and 12, which I believe go some way to meeting concerns.
	The amendment would significantly widen the scope of Clause 13 and the duty contained in it. The clause updates an existing duty on local authorities to provide information, advice and training to childcare providers. The information, advice and training that we intend local authorities to provide will be centred around the delivery of the early years foundation stage, Ofsted registration, child protection and general business advice. As I explained on Report, it is the Government's clear view that it would not be appropriate to require local authorities to secure these services for those who care for children to whom they are related. This amendment extends significantly the scope of duty under Clause 13. Where grandparents or other relatives look after children, local authorities would have to provide information, advice and training on a wide range of parenting and care issues. Furthermore, they would have to provide it on request. I do not dispute that these are important issues, but it is not the purpose of Clause 13.
	On relatives being able to access appropriate information about local services and facilities, I confirm again that no one with a role in helping to bring up a child would be turned away by local information services. Under Clause 12, local authorities are able to provide information to anyone whom they consider appropriate and must provide it to anyone who has care of a child on a settled basis, whether related or not. Under Clause 12, a person would be able to obtain information on where parenting classes are held or what information is available for grandparents.
	Similarly, local authorities will take into account family carers in fulfilling the Clause 1 duties to improve the well-being of young children. So, under Clause 1, parenting classes would be open to grandparents who would be able to access those classes and therefore update their parenting skills, which the noble Baroness, Lady Walmsley, was talking about. Perhaps some grandparents may feel that there is a need for that because they do not have the confidence that they would like. I can guarantee to the noble Lord, Lord Northbourne, that the statutory guidance on Clauses 1 and 12 will highlight the specific needs of grandparents and other close relatives involved in caring for children.
	There is nothing to stop relatives having access to the same training and advice services that will be available to formal childcare providers under Clause 13. We expect local authorities to secure training and advice services for childcare providers who may, in turn, be charged a reasonable fee for such services. Relatives who wish to take advantage will be able to purchase, for example, first aid training or training in the early years foundation stage. But, given that the services in Clause 13 will focus on the needs of formal childcare providers, such as business support, registration requirements and compliance with other statutory obligations, it really is not relevant to secure these services for relatives providing informal care. As has been said, that would significantly broaden financial expectations on local authorities.
	I have previously made it clear that I am very sympathetic to the needs of kinship carers, particularly grandparents. This Government already provide support for families through our strengthening families grant, which currently funds 51 projects at a value of £3 million, part of which funds a project with the Family Rights Group which aims to provide information, advice and support for all family and friends carers and those working with such carers, by updating guidance for grandparents raising their grandchildren, enhancing the grandparent carers' webpage, and developing a family and friends carers network. As I outlined at the Report stage, we have committed £70 million through our Respect Action Plan to support parents and all carers in parenting roles. This will help to fund parenting classes and establish the new national parenting academy. These services will not be limited to parents, but will be available to anyone who has care of a child.
	The noble Baroness, Lady Walmsley, said on Report that she would support relatives having access to information, advice and training as long as it did not involve a great spending commitment. Let me inform her that, because of its scope, this amendment would involve a substantial spending commitment. The requirement that information, advice and training should be made available on request would also place significant expectations on local authorities for which it would be difficult for them to plan in view of the uncertainties about the demand.
	As I have made clear, we value the vital role played by relatives, especially grandparents, in caring for children. However, given my assurances on statutory guidance, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Northbourne: My Lords, I am grateful to all noble Lords who have spoken in support of the amendment, and I am extremely grateful to the noble Baroness for what she has said. She is doing her best to be helpful within the financial constraints implicit in the amendment as she sees it. It would waste the time of the House to divide on this; indeed, I do not wish to do so in the light of the assurances I have been given. I shall go through them carefully and, if I may, I shall arrange for those representing grandparents such as the Grandparents' Association to work with her department to produce a guide in order to help grandparents access the various facilities. I was particularly interested to learn that parenting classes can be available to grandparents, which I had not realised. I also look forward to seeing the statutory guidelines on Clauses 1 and 12 referred to by the noble Baroness. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 73 [Procedure for taking certain steps]:

Lord Adonis: moved Amendment No. 5:
	Page 39, line 20, after "subsection (2)" insert "("the recipient")"

Lord Adonis: My Lords, I shall also speak to Amendments Nos. 6, 7 and 8. These are minor and drafting changes. Amendments Nos. 5 to 7 correct the drafting in Clause 73 to make it absolutely clear that the provisions in subsections (5) and (7) regarding the registration or deregistration of provision refer to the recipient of a notice from Her Majesty's Chief Inspector.
	Amendment No. 8 is a wonderful drafting correction on which to end our proceedings. It relates to Schedule 2, which amends the Education Act 1996 by correcting the wording to refer to a nursery in "England or Wales" rather than in "England and Wales", as the Bill now states. It became apparent that very few nurseries would fulfil that requirement. I am glad that our final act in respect of this Bill is to ensure that "England or Wales" will satisfactorily meet those provisions. I beg to move.

Baroness Morris of Bolton: My Lords, I thank the Minister for his letter in advance of these amendments. We are satisfied that they are minor, technical drafting changes, as well as geographical amendments. I know that I am not supposed to say so, but I wish the Bill well. We will watch its progress and no doubt press the Minister if it does not do well. I thank him and his Bill team for all their time and patience.

On Question, amendment agreed to.

Lord Adonis: moved Amendments Nos. 6 and 7:
	Page 39, line 26, leave out "person" and insert "recipient"
	Page 39, line 27, leave out "person" and insert "recipient"
	On Question, amendments agreed to.
	Schedule 2 [Minor and consequential amendments]:

Lord Adonis: moved Amendment No. 8:
	Page 65, line 39, leave out "and" and insert "or"
	On Question, amendment agreed to.

Lord Adonis: My Lords, I beg to move that the Bill do now pass. I know that I am not supposed to say anything either, but I cannot resist thanking noble Lords on all sides of the House for the enormous help they have given us in improving the Bill. It is now an excellent measure that I think will be pathbreaking in terms of children's services. We are very grateful to noble Lords for their work.
	Moved, That the Bill do now pass.—(Lord Adonis.)
	On Question, Bill passed, and returned to the Commons with amendments.

Health Bill

Lord Warner: My Lords, I beg to move that the Bill be now further considered on Report.

Moved accordingly, and, on Question, Motion agreed to.
	Clause 17 [Accountable officers and their responsibilities as to controlled drugs]:

Lord Warner: moved Amendment No. 23:
	Page 15, line 20, leave out from first "The" to "appearing" in line 21 and insert "descriptions of bodies, or bodies, that may be so prescribed are descriptions of bodies, or bodies,"

Lord Warner: My Lords, government Amendments Nos. 26 and 27 have been tabled to meet concerns raised in Grand Committee about the authorised persons who can enter and inspect an individual's home in relation to securing the safe, appropriate and effective management of controlled drugs. Government Amendment No. 26 limits when an authorised person for the purposes of Clause 20 can enter relevant premises which are or form part of a private dwelling. It ensures that an authorised person may enter such premises only if accompanied by a constable or in such other circumstances as may be prescribed by regulations. Government Amendment No. 27 is purely consequential.
	Amendment No. 26 contains a power to prescribe circumstances in regulations where an authorised person would not need to be accompanied by a constable. This is quite simply to ensure that if, for example, a medical practitioner's surgery is separate from their private dwelling but needs to be accessed through the private dwelling—through a shared hallway, for example—it would be possible not to require the presence of a constable.
	It would also be appropriate to use the power to exclude care homes from the requirement. Whilst they can properly be classed as a private dwelling, because they are already inspected by the Commission for Social Care Inspection it would seem illogical to require the presence of a constable in these specific circumstances.
	Amendments Nos. 23, 24, 25, 28 and 29 are merely minor drafting and technical in nature. I beg to move.

Earl Howe: My Lords, I welcome these amendments and I thank the Minister for having considered the matter.

On Question, amendment agreed to.
	Clause 18 [Co-operation between health bodies and other organisations]:

Lord Warner: moved Amendments Nos. 24 and 25:
	Page 17, line 15, leave out from first "The" to "which" in line 17 and insert "descriptions of bodies, or bodies, that may be so prescribed are—
	(a) descriptions of bodies, or bodies,"
	Page 17, line 19, leave out "Bodies" and insert "Descriptions of bodies, or bodies,"
	On Question, amendments agreed to.
	Clause 20 [Controlled drugs: power to enter and inspect]:

Lord Warner: moved Amendments Nos. 26 to 29:
	Page 19, line 9, at end insert—
	"( ) The power conferred by subsection (1)(a) may be exercised by an authorised person to enter relevant premises which are or form part of a private dwelling only if he is accompanied by a constable.
	But this subsection does not apply in such circumstances as may be prescribed by regulations made by the relevant authority."
	Page 19, line 27, leave out "subsection (1)" and insert "this section"
	Page 19, line 30, after "The" insert "descriptions of"
	Page 19, line 30, after "are" insert "descriptions of"
	On Question, amendments agreed to.
	Clause 26 [Requirements about supervision]:

Earl Howe: moved Amendment No. 30:
	Page 22, line 16, leave out "may" and insert "shall"

Earl Howe: My Lords, we had some extremely useful and constructive debates in Grand Committee on the issue of pharmacy supervision, and I return to the subject only briefly because there are perhaps two or three points on which we did not reach as definitive a conclusion as we might ideally have wished. Against that background, I hope the Minister will have guessed that Amendment No. 30, being a rather hackneyed format, is designed purely as a probe.
	One of the profession's main worries—I mention, in particular, the Pharmacists' Defence Association—is the extent to which it is reasonable to allow the pharmacist to be absent from the pharmacy whilst still ensuring that patient safety is not compromised. The Minister made some helpful comments in Grand Committee on remote supervision and the use of technology in improving patients' access to medicines. I am sure he is right that, as time goes on, we shall see the development of this technology which, in places such as Australia, where distances are very large, probably has an important part to play in ensuring that patients' needs are looked after. However, in Britain, the arguments for embracing this kind of technology are less strong because pharmacies, as a rule, are no more than a short car or bus ride away from a patient. Many members of the profession feel that the use of technology should not be encouraged as a substitute for pharmacists being physically present in a pharmacy because technology, however good it is, merely introduces new challenges for the maintenance of patient safety. Pharmacists cited a case in California where 4,700 people received incorrect medication when a dispensing robot went wrong.
	At a broader level, we need to be clear how we justify the absence of the pharmacist from the pharmacy and in what circumstances. Clearly, as we debated before, there are frequently good reasons why a pharmacist in the course of his professional duties has to be allowed to leave the chemist's shop. But the watchword here, as the Minister himself emphasised, must always be patient safety. The Pharmacists' Defence Association has advised me of a suggestion by the department of fixing a predetermined percentage of the working day as the maximum period for which the pharmacist will be allowed to be absent from the premises.
	Personally, I am very doubtful about whether a hard-and-fast percentage is the right approach, because having chosen a figure it is always possible to argue for a figure that is higher or lower in different circumstances. A fixed percentage such as 20 per cent is bound to be arbitrary. But we surely need to ask a more fundamental question: whether and to what extent supervision can ever properly take place when the pharmacist is not physically present.
	Let us leave aside remote supervision through the use of technology, which I have already covered. If a pharmacist is absent from the pharmacy, to what extent is it safe for him to rely on support staff to follow the rules laid down in standard operating procedures? The PDA tells me that it regularly encounters incidents of support staff acting outside their competences and putting patient safety at risk. That is surely worrying. So in creating flexibility for pharmacists to be absent, which on one level I understand the need for very well, we ought to keep in mind that there is an inevitable trade-off for that flexibility in the form of a potential risk to patient safety. None of us wants to see that compromised. If an arbitrary percentage of "absent time" were proposed, it would need to be closely justified by reference to the patient safety principle.
	The regulations will deal with the finer details, but I should be most grateful to hear from the Minister a little more of how the Government propose to square this circle. I beg to move.

Lord Warner: My Lords, Clause 26(1) inserts new subsection (7A) into Section 10 of the Medicines Act 1968. It enables us to make clear what a pharmacist has to do to satisfy the supervision requirements in respect of the preparation and assembly of medicines. Through this power we can specify which activities pharmacists must undertake themselves and when aspects of the preparation and assembly of a medicine can be delegated to other trained and competent pharmacy staff working under the supervision of the pharmacist. This power also enables us to prescribe conditions that must be met where a pharmacist supervises these activities remotely. However, the power does not relate to our proposals to enable the responsible pharmacist to delegate certain aspects of supervision for suitably trained and registered health professionals such as pharmacy technicians, which can already be achieved using order-making powers in the Medicines Act.
	I accept the spirit in which the noble Earl moved his amendment—to find out a little more about what we are up to in this area, if I may put it that way. Certainly, the exercise of the pharmacist's responsibilities is not wholly dependent on his or her physical presence in the pharmacy at all times. I reassure the noble Earl that we recognise the need for parameters to be set on the pharmacist's absence, but they should not, as now, constrain the pharmacist from using his extensive clinical training to offer services away from the pharmacy and working with other health professionals in the community.
	It is important that the pharmacy is seen as the responsible pharmacist's main place of work, where he will spend most of his working time to exercise fully his responsibility for the safe and effective running of the pharmacy. However, like the noble Earl, I am not wildly enthused about fixing a minimum percentage of time; that would be arbitrary and would not deal with the range of circumstances that may exist. We intend to set out in the regulations the circumstances and conditions supporting the pharmacist's absence from the pharmacy—for example, for arrangements to be in place for pharmacy staff to contact the responsible pharmacist when he is away from the pharmacy, or another available pharmacist, to provide advice.
	I assure the noble Earl and the House that we shall consult extensively on the development of the regulations in due course. In the mean time, we outlined in an information paper published in January how they might develop. If the noble Earl has not seen the paper, I can send it to him and to other noble Lords. We shall proceed with great care and caution in this area and will do so in full consultation with the pharmacists' interests. We believe that this issue needs to be thrashed out in the consultation on the regulations, and I hope that the noble Earl will be more reassured by what I have said.

Earl Howe: My Lords, I thank the Minister for his considered answer. I took heart from what he said, because it seemed to convey the balance and common sense that I had hoped to hear from him. I welcome his commitment to full consultation on this issue; I am sure that the profession will expect and welcome that. With goodwill on both sides, I believe that the issue can be satisfactorily resolved to meet the concerns that I outlined. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 30 [The responsible pharmacist]:

Baroness Barker: moved Amendment No. 31:
	Page 25, line 36, leave out from "time" to end of line 38.

Baroness Barker: My Lords, this amendment returns to similar ground to that covered by the noble Earl's amendment. I, too, came away from our deliberations in Grand Committee uneasy about the proposals to change the regime of one pharmacist having to be present at all times in one pharmacy. The noble Earl argued the case on the grounds of patient safety, which is entirely valid, but I want to come at it from a slightly different point of view: quality of service and advice.
	In Grand Committee I set out the case—quite well, I think—for maintaining what is perhaps one of the most valuable parts of the health service in the high street: the availability of a qualified pharmacist to advise and give information about medicines and treatment, often where there are very few other sources of information. We talked a lot about how pharmacists are often extremely important in using their skills to analyse how someone's medication is working. That quite often happens when someone comes in for a repeat prescription, when it may be more evident than at the time when a GP made an order for a prescription that something is not right. That is a very valuable service.
	The Minister cited two examples of why the Government's proposal is preferable. He mentioned vending machines in Australia, as we have heard, and temporary pharmacies at rock festivals. I do not find either of those examples particularly compelling. I am not being flippant, but I genuinely think that there is much to be lost if the existing guarantee that a responsible pharmacist will be in a pharmacy is removed. That, frankly, is not made up for by the examples he gave.
	I tabled this amendment to offer the Minister another opportunity to set out examples of what he believes would and, crucially, would not be permitted under the new regime if the Bill went ahead as it is. I need to be convinced a bit more. I am not one to stand in the way of technological progress, but I believe we are light years away from technology sensitive enough to deal with some of the conditions people will have, and I do not believe detection will be possible at long distance, at least not of the quality that is possible face to face. I hope the Minister will be able to give us some more reassurance. I beg to move.

Earl Howe: My Lords, the noble Baroness, Lady Barker, has made some powerful points, and I agreed with much of what she said.
	I want to come at this issue from a slightly different angle. In Grand Committee the Minister gave some welcome reassurances on the general principle of one pharmacist/one pharmacy, which I and other noble Lords believe is right. However, the trick the Bill needs to pull off is both to safeguard that general principle while not closing the door to evolution in how pharmacies are run. We are living through a time of considerable change for pharmacies, and it would be unwise to set in stone provisions that do not allow for a certain amount of flexibility within the confines of one pharmacist/one pharmacy.
	I cite one example. A major pharmacy group is working on a hub-and-spoke idea for dispensing prescriptions. The prescriptions arrive at a central pharmacy, either electronically or from an outlying pharmacy where the patient is. That central pharmacy then dispenses under the supervision of a pharmacist. It then sends the medicines to the outlying pharmacy to be handed to the patient by the pharmacist in that shop; in other words, there is no loss of supervision at any stage of the process. But I suggest that it is the pharmacist at the centre who is really acting as the responsible pharmacist within the terms of the Bill.
	The point of that idea is to free up time for providing services in the "spoke" pharmacies. The pharmacist at the centre plays a superintending role over the other pharmacies in the cluster, but each of those has a pharmacist in them. That is a variation on the theme of one pharmacist per pharmacy. While I hope no one would take issue with the arrangement from a patient safety perspective, the lines are rather blurred, strictly speaking, as to who the responsible pharmacist in that example actually is. Again, we are dependent on the regulations to see how and in what circumstances the Government are prepared to relax the one pharmacist per pharmacy rule.
	The Minister will need to take care not to go faster than the profession wishes to go, but at the same time to leave room for sensible variations within a framework of maintaining patient safety. That is not by any means an easy balance to strike, but I do not believe it is impossible.

Lord Warner: My Lords, I recognise the lingering doubts expressed in Committee that have prompted a return to this amendment. I reiterate the firm statement I made in Committee: the general rule should be one responsible pharmacist/one pharmacy. That is our position. However, the noble Earl, Lord Howe, has shown how circumstances can change. People can come up with new ways of operating that are consistent with patient safety but provide better service to them. None of us wants to get in the way of those changes where they can be made to operate. The noble Earl's point about not going faster than the profession wants to go is sensible, and one with which we find it difficult to disagree.
	The Government are quite clear on this matter. We think it is important to allow the pharmacist in charge to meet fully his or her statutory responsibility for the safe and effective running of the pharmacy. I do not think that there is any disagreement between us on that. As I have stated before, we expect the vast majority of pharmacies to each have a responsible pharmacist. I also welcome this opportunity to make clear once more that any exception to this general rule will need to meet specified conditions and circumstances set out in regulations for it to be considered on its merits and our intention is that these regulations are tightly drawn. The overall intention of the regulations will be to ensure that the responsible pharmacist fully exercises his or her duty to maintain patient safety in each of the pharmacies for which they are responsible, including supervision of dispensing activities.
	We cannot be sure that a requirement to make an exception to the general rule of one responsible pharmacist, one pharmacy will not arise in the future. I am sorry that the noble Baroness did not like my examples. I recognise that there will not be a Glastonbury festival this year, so perhaps the rock festival example may not be one on which I wish to place a lot of weight. However, I come back to my vending machine, even if it is an Australian vending machine. It is quite possible that vending machines will be used in this country in this way. Already, as I said, we can accept that for a pharmacist to be responsible solely for pharmacy premises where a vending machine is located would not necessarily be a sensible way of using a pharmacist's extensive clinical training. If the noble Baroness's amendment were accepted, a vending machine would literally have to have a pharmacist standing by it all the time. That does not seem to us a sensible way to proceed, particularly when people of all shades of opinion recognise that much more use can be made of pharmacists' skills in areas other than the preparation, sale and supply of medicines, important though that is as their core business. Other services were included in the pharmacists' contract negotiations, such as health promotion campaigns, signposting and advice on stopping smoking. Those services are not governed by the Medicines Act. We believe that pharmacists can provide those services and pharmacists believe that they can provide those services for the benefit of patients. That is why it is important to future proof this legislation so that when new ways of working, technological or otherwise, come along, we do not put unnecessary legislative barriers in their way, but use the regulations provided for in the Bill to ensure that patient safety is safeguarded.
	Rather than make no provision we believe that it is necessary to allow us the opportunity to consider such circumstances as and when they arise. To return to the vending machine example, if the noble Baroness's amendment were accepted we would limit the pharmacist's capability to do other things and the opportunities for improving the public's access to certain medicines.
	I hope that I have made it clear that these regulations will safeguard public safety in looking at any exception to the general rule, while allowing us to take account of future changes so that we do not hamstring existing and future developments in the provision of pharmaceutical services and ways of improving the public's access to medicines. It is important to be clear that there is no long list of exceptions to this rule. Almost by definition this provision allows us to make exceptions. If we had a long list of these exceptions, I would provide them. However, we do not have such a list. That does not seem to me to alter the case that we have some known exceptions, which makes it sensible to make this future-proofing provision in legislation. With those assurances, I hope that the noble Baroness will feel able to withdraw her amendment.

Baroness Barker: My Lords, I thank the Minister for taking the time to go through the arguments once again. I hope he will accept that I am not in any way against the use of technologies that will enable pharmacists to be more efficient or to take on other roles, but my central point remains that only a pharmacist can be a pharmacist. Other people can carry out other activities, such as giving smoking cessation advice or advice on diet, but pharmacists have absolutely fundamental and central skills, and much of what they do is built on that basic trust. At a time when medicines are becoming much more complex and much more personalised, it seems to me to be potentially harmful to remove the personal relationship between pharmacists and their customers, which has been central both to quality of service and patient safety. I have listened to what the Minister said, and I do not intend to push this to a vote. I will look at the regulations with very great care indeed. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe: moved Amendment No. 32:
	Page 26, line 12, leave out "qualifications and"

Earl Howe: My Lords, in Grand Committee, the Minister explained that it is the Government's intention to consult all interested parties on the content of the regulations that will set out the requirements that a pharmacist must meet in order to take on the responsibilities associated with being in charge of a pharmacy. That was a welcome assurance.
	The point I raised then, and which I raise again today through the amendment, relates to the mention in proposed new Section 72A(7)(a) of the qualifications that a pharmacist must have if he is to be a responsible pharmacist. We all understand that pharmacists must be properly qualified. If you wish to practise as a pharmacist in this country, you must be a member of the statutory regulatory body for the profession, which is the Royal Pharmaceutical Society of Great Britain. You are thereby registered with the society and are entitled to use the registered title of pharmacist. Those requirements and entitlements are recognised throughout the European Union, and each member state has its own equivalent and comparable arrangements.
	However, in proposed new Section 72A there is a power for Ministers to lay down additional requirements for anyone seeking to become the responsible pharmacist. The Minister explained that in subsection (7)(a) the Government wished to ensure, quite rightly, that the training and experience of such a pharmacist are fit for purpose. The question mark that I raise over the inclusion of the word "qualifications" is that it appears to confer a power on Ministers to stipulate a professional qualification over and above that of being a member of the Royal Pharmaceutical Society of Great Britain. If the Government were to make such a stipulation, the implications would be far-reaching. Is there any intention at present to propose that? If so, the profession certainly needs to know about it. If there is not, I wonder whether there is a need to include the word "qualifications", because clearly no person may be appointed to be a responsible pharmacist unless he or she is already a qualified pharmacist with all that carries with it.
	The profession has voiced its concern to me that the qualification necessary to run a retail pharmacy business in this country should be no more nor less than it is elsewhere in Europe. I have sympathy with that view. It would be helpful to hear a little more from the Minister, not about the issue of experience, which is less contentious in this context, but about the specific issue of professional qualifications. I beg to move.

Lord Warner: My Lords, being able to specify in regulations the qualifications and experience that a responsible pharmacist must have is an important safeguard. However, I can reassure the noble Earl that when we refer to qualifications we are not thinking in terms of any significant extra formal or academic qualification over and above registration as a pharmacist. As we outlined in the information paper that we published in January 2006, this might mean, for example, that to become a responsible pharmacist, someone has to have been qualified as a registered pharmacist for a number of years and, in the case of a community pharmacy, have experience of working in a registered pharmacy in that setting.
	Of course, the UK must, as a matter of European law, recognise the qualifications of pharmacists qualified in other European Community member states. Nothing in this regulation-making power is intended to be inconsistent with that. Indeed, any regulations made under this power which were inconsistent with that would be susceptible to legal challenge.
	However, one option that we might wish to pursue, subject to proper consultation with the profession and its interests, might be that the pharmaceutical societies could include on the register of pharmacists an annotation against the names of those pharmacists who have the necessary length of qualification and the appropriate experience in a community pharmacy to take on the role of responsible pharmacist. That would make the position easier and more transparent for pharmacists and pharmacy owners alike. In legal terms, such an annotation could be viewed as a qualification. Therefore, retaining power to make provision about both the qualifications and the experience that a person must have if he is to be a responsible pharmacist would be needed to introduce such an approach through regulations.
	We have also made clear our intention—which I repeat today—to consult all interested parties on the development of these regulations. For example, the timing of their introduction, to allow the professional regulatory bodies, pharmacy owners and others to put in place arrangements to enable pharmacists wishing to take on this important role to meet the requirements, is essential. We clearly recognise the need for the pharmacist workforce to be able to meet any such conditions that are set, while maintaining the public's ready access to pharmaceutical services. So, we are well-seized of the need to take the profession with us in this area and we will ensure that it is fully involved in regulations made under this provision.
	I hope that I have explained why we feel that the words "qualifications and experience" are appropriate to use in the legislation. We will carefully consider all these issues with interested parties through widespread discussion and consultation in determining what conditions might be set to ensure that a responsible pharmacist is able to meet his or her statutory duties fully and effectively—and to maintain public safety, which is the point behind the legislation. That is the be-all and end-all of what we are trying to do. I hope that that has provided some explanation and reassurance to the noble Earl.

Earl Howe: My Lords, I am glad that I tabled the amendment, because that was a helpful reply which contained not only some welcome reassurance, but some valuable clarification of the Government's intentions, which, I am sure, the profession will duly note with appreciation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 35 [Applications for provision of pharmaceutical services]:

Earl Howe: moved Amendment No. 33:
	Page 30, line 39, after "applications" insert "(other than proposals based on price or discount)"

Earl Howe: My Lords, Clause 35 sets out new provisions governing applications submitted to PCTs for the provision of pharmaceutical services. In Grand Committee, I raised serious concerns about this clause and, I am sorry to say, despite the Minister's comments then and his subsequent letter to me, for which I thank him, those concerns substantially remain.
	The Minister has explained that the provisions in new subsection (2B) are intended to cover what one might term a "tie break", where two or more pharmacy applications are considered side by side and are regarded as equally meritorious in the context of the necessary and desirable test. In those circumstances, new subsection (2B) would allow a PCT to take into account a number of other factors, among which would be the availability and price of over-the-counter medicines and other products in each of the pharmacies competing for the approval. My chief worry—it is widely shared in the pharmacy profession—is that this additional criterion carries with it an inherent unfairness, an inherent ambiguity and considerable difficulties for effective monitoring and enforcement.
	The Minister was at pains to assure me that the price of OTC medicines was not the main driver of this clause but, rather, one of a number of variable factors that PCTs should consider when choosing between otherwise equal applications. I suggest to him that, in practice, that is not how the process is likely to work. The price of medicines is easy to set and easy to quantify. By contrast, what is referred to as the range of improvements to services will be difficult to define and harder to quantify.
	It is true that applicants are to be encouraged to think of innovative ways of providing new services. The trouble is that the more innovative the bids, the more difficult they will be to judge. Larger companies are therefore likely to find that promising a selection of cheaper medicines is much simpler than spending time thinking up new services. Price is therefore likely to become the dominant defining factor in a tie-break and, because of that, pharmacies will be induced into a downward spiral of price reductions that will affect their profits.
	If this is not price-fixing, it comes extremely close to it. If retail prices are deliberately manipulated downwards by the NHS, patients will ultimately pay for that. Reductions in profits from OTC sales will have to be recouped somehow or other. They will be recouped either by increasing the prices of non-OTC lines or lines not forming part of the range of improvements, or by reducing other services to patients. Pharmacists have always provided professional services to patients but, ultimately, pharmacy companies are businesses and not charities. Advice and testing, which to the patient may appear to be free, in reality all cost money. That is why the inclusion of the price of medicines in this clause looks set to be self-defeating—in two ways. It will be self-defeating in the bidding process because large price cuts will tend to trump innovative thinking, and it will be self-defeating later because, if those price cuts become a reality, corners will be cut in other areas that are bound to prove unwelcome.
	However, before we get even this far, we need to remind ourselves of something rather fundamental. The sale of OTC medicines by pharmacies is, and always has been, completely outside the scope of the NHS contract. The governing regulations do not refer to OTC medicines or to their price. The sale of these medicines and the price at which they are sold are matters that have always been determined by the marketplace. It is a private transaction in which the NHS bears none of the risks. For the NHS to attempt to manipulate a market in which it has no locus is, in my view, objectionable and wrong in principle.
	Aside from the principle, the practical difficulties for the NHS in its monitoring role will be considerable. I wonder whether the Department of Health fully appreciates the extent to which the pricing of OTC medicines varies, particularly for seasonal products. Supplies can vary from week to week, depending on factors such as the weather, promotions or factory constraints. Once a product is out of stock, it can be some time before it comes back into stock, as most products are produced in batches rather than in continuous production. Ranging and pricing decisions within pharmacies are complex and change continually.
	Against that background, how does one monitor whether a pharmacy is adhering to the terms of its original bid? How is performance to be measured? PCTs will struggle to keep up with what is happening. If they do not keep up, one has to ask the point of such a regulation. Indeed, to make any fist of monitoring pricing agreements, PCTs will have to contact pharmacies at least monthly for the relevant information. At the moment, the monitoring of pharmacies by PCTs relies on annual visits, so the regulatory burden on both parties looks set to increase quite a lot. Alternatively, we may have a situation in which lower prices are offered only at the time of the annual PCT visit. Pharmacies know when a visit is to be undertaken because PCTs have to give notice.
	I wonder how much of that has been thought through. The detail of how monitoring and enforcement might work is distinctly lacking. When one tries to think it through, it is hard to know how it could be accomplished fairly. If unfairness is perceived, one thing is certain: those who have lost out in the bidding process will challenge PCTs, very probably through the courts.
	No such difficulties arise when only the provision of services determines the outcome of a tie-break. Pharmacies are not in the least frightened of having to bid on the basis of enhanced services. Not only is that a more reasonable basis for a decision, because it relates to the pharmacy contract, but it is also much easier to monitor. Either a service is being provided to the agreed standard or it is not. The Minister has argued that smaller providers will not be significantly disadvantaged by the provision, but I beg to differ. The smaller providers will find it hard to compete on price. Yes, they may have access to wholesale buying groups, but those are not the same as vertically integrated supplier chains, where costs can be more easily stripped out. Yet we all know that usually it is the smaller suppliers who have the kind of local knowledge that may serve to identify the right range of pharmacy services for a local area and they could well end up doing a better job than some of the bigger providers.
	I have not been convinced by the rather generalised reasoning deployed by the Minister up to now. I do not feel that he has addressed the concerns that I outlined in Grand Committee or just now. No one argues against the need for a better way to resolve tie-breaks than at the moment and I do not believe anyone seriously argues that a focus on enhanced services is not a reasonable way to proceed. I urge the Minister to rethink the wisdom of allowing medicines' prices to enter the equation. In my view, that is not the right way to go. I beg to move.

Baroness Barker: My Lords, we support the amendment of the noble Earl, Lord Howe, for all the reasons that he has set out. If this provision goes ahead, I too feel that, inevitably, there will be a slant in favour of the big providers and away from the small, community-based pharmacies or sole traders. They simply cannot compete on the basis of the price on the general sales list. We all know how supermarkets, even those without a pharmacy, have moved into the pharmacy business because they can already sell general sales list products. They therefore get the bulk discounts.
	The noble Earl, Lord Howe, has come up with an elegant solution to the problem which he and I identified in Grand Committee. I hope that the Minister will be sympathetic to it.

Lord Warner: My Lords, before I deploy my argument, I have a terrible feeling that I may not convince the noble Earl. However, I will attempt to go through this in a bit more detail, in the hope that I can persuade him that we are behaving reasonably.
	When determining chemist applications to provide NHS pharmaceutical services, legislation means that primary care trusts cannot take into account any additional services that the chemist might offer. The Government committed to changing this as part of their balanced package of measures responding to the Office of Fair Trading's report into retail pharmacies. That is how we came into this issue.
	Until recently, NHS pharmaceutical services, as defined under the National Health Service Act 1977, primarily comprised the supply of drugs, medicines and listed appliances. It is important to hang on to the fact that we are changing the range of services which can be taken into account in the kind of situations under discussion. However, with the introduction of the new contractual framework for NHS community pharmacies in April 2005, pharmacists are required to provide other essential services, such as promoting healthy lifestyles and support for self-care, linked to the dispensing of medicines. It is an additional range, but, inevitably, some of that continues to be linked to the dispensing of medicines. These new changes aim to improve choice and convenience for patients and help reduce reliance on NHS services.
	Sales of over-the-counter medicines and other related healthcare products have been estimated to account for 10 per cent of a typical pharmacy's turnover, compared with 80 per cent derived from NHS prescription business. Important though over-the-counter medicines are, they are a relatively small proportion of the turnover of the business in this context. Although I accept that the range of medicines available over the counter is being significantly extended—so one would possibly expect that balance to change—it is still a relatively small proportion of the total income of a typical pharmacy's turnover. Such sales are, of course, private transactions and, as such, do not come under the requirements for pharmaceutical services under the NHS Act. Nevertheless, as services, they are closely related to other services we are interested in, particularly the requirement on pharmacies to support patient self-care as an essential NHS service.
	I fully accept that over-the-counter medicines are an important part of helping patients to take more responsibility for self-care. I am not dismissing their role, but putting it into context: they are a relatively small proportion of the total turnover.
	We therefore consulted further on this complex issue last summer, on the proposal to enable primary care trusts to consider, in their assessment of chemist applications, what improvements they could bring to the provision of, or access to, over-the-counter medicines and other healthcare products. Expanding consideration in this way would, for the first time, capture this aspect of a chemist's activity within the primary care trust's overall assessment of chemist applications.
	Appropriately in Wimbledon week, the noble Earl talked about tie-breaks. I emphasise that this new provision will come into play only where a primary care trust is assessing two or more applications together. They must all pass the "necessary or desirable" test, but it would not be necessary or desirable to grant them all. This will occur in a competitive situation when applications take place at the same time.
	This amendment would enable primary care trusts to consider only the range of over-the-counter medicines and other healthcare products each applicant sells and the advice it gives. As I understand the noble Earl, his point was that it would remove the ability of primary care trusts to consider price or discounts. I stress that our proposal is not simply about cheaper or cut-price medicines and that primary care trusts' considerations in these matters will not be solely financial, for the reasons I have given. While price can obviously be a factor, it is not, nor will it be, the primary determining factor. Our proposal goes much wider. It centres on improvements in access to a wide range of health-related products, including medicines, and the support and advice available to the patient to go with that supply. The primary care trust will take account of that wider range of considerations in deciding between rival applications.
	Our proposal is not about comparing the discounts that companies can gain from wholesalers but about trying to get the best range of services available to patients in a particular set of circumstances. With consultees' indication that discounts would also be open to smaller pharmacies through access to larger wholesale-buying groups, it is about patients' access to over-the-counter medicines and healthcare products—and access also means affordability. We cannot get away from the fact that the price of a product has some impact on its affordability and its accessibility to patients. Primary care trusts therefore need to be able to take into account prices of products when assessing applications. I again emphasise that a wide range of considerations will be made, not just the price of over-the-counter medicines, and that that consideration will happen in the limited set of circumstances when rival applications are being determined at the same time.
	I do not accept the noble Earl's essential point that the price of over-the-counter medicines will be a dominating factor. He is implying that that will skew the decisions. Price is just one factor, not necessarily the main one, in determining which application a PCT will accept. It is worth putting on the record that the National Assembly for Wales, while it did not accept the recommendations in the Office of Fair Trading report and has not introduced the regulatory reforms now in place in England, has decided to implement this proposal for NHS pharmaceutical services. The clause therefore contains an equivalent provision for Wales.
	I am still slightly unclear whether the noble Earl is on the side of a free and open market, in which case the PCT's ability to take price into account is surely important, or whether he is concerned about patients, in which case price remains important but should not be the only factor. I say that price is one factor among many others. We think that our clause strikes the balance between price, which is good for patients, and wider support services, which are also good for patients. It is a balanced judgment, and we think our proposal is balanced. I hope that I have given some comfort to the noble Earl and the noble Baroness, Lady Barker.

Earl Howe: My Lords, I am grateful to the Minister for his reply. I appreciate his efforts to set out the Government's thinking in this area. I am disappointed that he is not persuaded by my argument.
	The noble Lord is right that, in many cases, over-the-counter medicines form a relatively small element of a typical pharmacy's turnover, but they can make a critical difference to the viability of a business. That is the concern of many pharmacies. He is right that accessibility is important, as, indeed, is affordability, but OTC medicines are commonly thought of as a distress purchase. They are not, in general, price sensitive.
	I do not feel that the Minister dealt properly with one or two of the points that I tried to make; notably, that it is improperly intrusive for the NHS to seek to manipulate prices of goods in a private market, outside its own jurisdiction. I am not sure how this process will be made sufficiently fair and transparent to avoid lengthy and costly challenges. Equally, I do not think that the Minister convinced me on the difficulty of monitoring retail prices against the terms of a winning bid. I see huge scope for problems in trying to do that fairly. Nor did I feel that he dealt satisfactory with the weak position of the smaller supplier relative to the much stronger commercial muscle enjoyed by supermarket chains. So I am still not convinced and I am still concerned.
	However, I do not think that much purpose would be served by dividing the House on such an issue. If the Government are firm in their view, perhaps they will agree after a suitable period to review how the clause is implemented in practice. I shall not suggest to the Minister what that interval should be—he might think a couple of years. At that stage, consultation with interested parties would show whether there are problems of the kind that I have envisaged. Will the Minister agree to look at this idea before Third Reading and write to me about it?

Lord Warner: My Lords, I am willing to do that. It always makes a lot of sense to test how new changes have worked in practice. The noble Earl's idea is a good one, and I am happy to consider it and write to him and other noble Lords.

Earl Howe: My Lords, I am grateful to the Minister for that assurance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 38 [General ophthalmic services contracts]:

Earl Howe: moved Amendment No. 33A:
	Page 35, line 35, at end insert—
	"(6) Before making regulations under sections 28WA to 28WE, the Secretary of State shall consult such persons or organisations as appear to him to be representative of persons providing ophthalmic services."

Earl Howe: My Lords, in Grand Committee we had a series of short but very useful debates on the ophthalmic clauses in the Bill, following on from the equally useful debates conducted in another place. It is extremely helpful and reassuring to have had explicit statements from the Government about the importance of eye health, particularly for vulnerable groups such as children and older people. It is important to have on the record the Minister's commitment that the NHS sight test fee will remain centrally funded and negotiated, that it will not be constrained by local budgets and that patients will continue to have access to the provider of their choice. All this matters very much. There were worries that some contractors might be excluded from the GOS through no fault of their own. Those worries have been successfully dispelled by the Minister's assurance that contractors that meet national criteria will continue to be entitled to a GOS contract.
	All this is very positive. The simple point I want to raise through the amendment is that the GOS review presents a major opportunity to improve eye care and eye health for the whole population. I very much hope that the Government will use this opportunity to listen to and work with the profession.
	Wisely, the Government have listened to the profession about why the current eyecare system has been a national success, and, as a result, the GOS system is to continue. To build on that success and to improve services even further, it is vital for the Government and the profession to work side-by-side to examine the issues constructively and in detail. The GOS review must be thorough and open. I hope that the Minister can reassure me that openness and thoroughness will indeed characterise the forthcoming review. I beg to move.

Lord Warner: My Lords, I do not think that there is any issue between me and the noble Earl. We are committed to consultation on the regulations and I am happy to make the commitment that there will be full consultation on regulations on general ophthalmic services contracts with representatives of providers of ophthalmic services. We do not think it necessary for that to be in the Bill. That has not been previous practice and such a requirement is not in primary legislation for current general ophthalmic services, nor for medicine, dentistry or pharmacy. We see no reason why it should be necessary in this case. However, I emphasise that we will have full consultation with the profession on the regulations before they are made.
	It is important also to make the point that we intend to consult other bodies on certain contractual issues. For example, in relation to exclusion from holding a contract, we would consult with the Counter Fraud and Security Management Service, as one reason for exclusion is likely to be a history of fraud. So there will be a wider range of people whom we want to consult. However, that does not diminish in any way our firm commitment, which I am happy to repeat, that we will have full consultation on the regulations. We think it unnecessary to provide for that in the Bill. I hope that that gives the noble Earl the reassurance for which he was looking.

Earl Howe: My Lords, once again, I thank the Minister. That does give me a great deal of reassurance. I thank him for what he has said and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 49 [Code of practice relating to delegated functions]:

Lord Warner: moved Amendment No. 34:
	Page 44, line 4, after "to" insert—
	"(a) "

Lord Warner: My Lords, the amendments in this group all relate to the disclosure of information obtained through the use of the powers set out in this part. Clause 49 gives the Secretary of State and the National Assembly for Wales the power to produce a code of practice that will clearly detail the rights and responsibilities of those exercising the power and those subject to it, to ensure that the powers are used appropriately.
	Amendments Nos. 34 and 35 will ensure that we can make provision in the code of practice about the procedures that authorised officers disclosing information under Clause 50 must follow, specifically where requests are made to disclose information that identifies individuals.
	It is intended that most disclosures will be made with the consent of the relevant individual. Where that is not the case, the authorised officer will be obliged under the code to consider whether the information can be disclosed in an anonymised form. It is expected that the majority of disclosures under the powers will be made in such a way that individuals cannot be identified.
	Clause 50 outlines the circumstances in which information obtained using the powers set out in this part can be disclosed by, or on behalf of, the appropriate national authority. Information obtained by the use of the powers must not be disclosed unless it is required for the specific conditions set out in the Bill, or the patient has given their consent. Amendment No. 36 to subsection (3) is intended to ensure that disclosure can also be made in accordance with an order of a tribunal as well as a court as currently drafted.
	Amendment No. 37 to subsection (5) further restricts the onward use or further disclosure of information disclosed under Clause 50(3), so that information disclosed under Clause 50(3) must not be used or further disclosed by any other person except under the conditions in this subsection. If information is incorrectly disclosed, the person could be committing a criminal offence as outlined in Clause 53. Under the provision, the restriction on the use or further disclosure of the information applies only to the person to whom the information is disclosed. Clause 51 requires that certain information obtained from personal records be classified as protected information for the purposes of disclosure for proceedings. This is required if the identity of the individual can be ascertained from the information itself, or if the discloser has reasonable cause to believe that this information, taken with other information obtained and disclosed in accordance with these clauses, could reveal an individual's identity.
	Amendment No. 38 replaces the previous clause and seeks to ensure that the provision on protected information applies to civil and relevant disciplinary proceedings and is not limited to criminal proceedings. Under Section 51(2), the discloser of protected information must take all reasonable steps to ensure that all protected information is disclosed only to someone to whom it is necessary to disclose it in conjunction with the proceedings. Under the code of practice, an obligation will be imposed on the discloser to mark the information as protected. Protected information cannot be disclosed in evidence unless the proceedings are wholly in private or the court or tribunal, in which the proceedings may be partly or wholly in public, has given its permission. The court or tribunal may agree to this if it is satisfied that it is in the interests of justice that the information is disclosed. In considering such an application, the court or tribunal must also consider whether, in the interests of the individual concerned, the hearing ought to be wholly or partly in private. The court can grant permission on such terms as it thinks fit. The protected information need not be disclosed in its original form; for example, the court may agree that sensitive details requiring protection should be blocked out—known as redact—or that documents can be summarised.
	Clause 53 provides offences relating to the disclosure or use of information obtained by the use of these powers. Amendment No. 39 is a consequential amendment designed to ensure that the correct subsection of the amended Clause 51 retains the offence previously drafted. I am grateful to the noble Earl, Lord Howe, for his amendment which was tabled in Grand Committee and which was aimed at tightening the safeguards around the disclosure of personal information so that information is not disclosed to any person to whom it is not necessary to disclose it. That amendment gave us pause for thought, and this package of amendments aims to respond as robustly as possible to this important issue. I beg to move.

Earl Howe: My Lords, I thank the Minister for these amendments and for his helpful reassurances, which pick up a number of points and concerns about patient confidentiality that we debated in Grand Committee.

On Question, amendment agreed to.

Lord Warner: moved Amendment No. 35:
	Page 44, line 6, at end insert—
	"(b) procedures to be followed in relation to the disclosure (in accordance with sections 50 and (Protection of personal information disclosed for purposes of proceedings)) of information obtained by or on behalf of a Special Health Authority in the exercise of such functions."
	On Question, amendment agreed to.
	Clause 50 [Disclosure of information]:

Lord Warner: moved Amendments Nos. 36 and 37:
	Page 45, line 5, at end insert "or tribunal"
	Page 45, line 19, leave out from "disclosed" to end of line 24 and insert "except—
	(a) for a purpose connected with the functions, investigation or proceedings for the purposes of which it was so disclosed, or
	(b) in accordance with an enactment or order of a court or tribunal."
	On Question, amendments agreed to.
	Clause 51 [Special protection for personal records]:

Lord Warner: moved Amendment No. 38:
	Leave out Clause 51 and insert the following new Clause—
	"PROTECTION OF PERSONAL INFORMATION DISCLOSED FOR PURPOSES OF PROCEEDINGS
	(1) Information obtained from personal records produced in compliance with a notice under section 46 is "protected information" for the purposes of this section if—
	(a) a person ("the discloser"), in accordance with section 50(3), discloses the information for the purposes of any proceedings, and
	(b) either—
	(i) the identity of the individual in question can be ascertained from the information itself, or
	(ii) the discloser has reasonable cause to believe that it will be possible for a person who obtains the information as a direct or indirect consequence of the disclosure to ascertain the individual's identity from that information taken with other information obtained by virtue of section 46 or 47 and disclosed by or on behalf of the appropriate national authority.
	(2) The discloser must take all reasonable steps to ensure that, once disclosed by him in accordance with section 50(3), the protected information is not further disclosed to any person who is not someone to whom it is necessary to disclose the information for any purpose connected with the proceedings mentioned in subsection (1)(a).
	(3) In subsection (2) the reference to further disclosure of the information does not include any such disclosure—
	(a) by way of evidence in any proceedings, or
	(b) in accordance with an enactment or order of a court or tribunal.
	(4) The appropriate national authority must make provision, whether in a code of practice issued under section 49 or otherwise, for requiring any person disclosing protected information in accordance with section 50(3) to ensure, by the use of a distinguishing mark or in some other way, that the information is clearly identified as protected information for the purposes of this section.
	(5) Information that appears to be protected information must not be disclosed by way of evidence in any proceedings unless—
	(a) the whole of the proceedings are held in private, or
	(b) in any other case, the information is disclosed in accordance with permission given by the court or tribunal on an application under subsection (6).
	(6) If, on an application by a party to—
	(a) proceedings before a court, or
	(b) proceedings of any description before a tribunal that sits, or may sit, in public during the whole or part of proceedings of that description,
	the court or tribunal is satisfied that it is in the interests of justice for any information that appears to be protected information to be disclosed by way of evidence in the proceedings, it may give permission for the information to be so disclosed, on such terms as it thinks fit.
	(7) When determining such an application, the court or tribunal must consider whether, in the interests of protecting the identity of the individual to whom the information relates, the whole or part of the proceedings should be held in private.
	(8) If the court or tribunal is satisfied that the whole or part of the proceedings should be held in private, it must give such directions, or take such other steps, as appear to it to be appropriate.
	(9) In this section "proceedings" means—
	(a) criminal or civil proceedings, or
	(b) relevant disciplinary proceedings (as defined by section 50(4))."
	On Question, amendment agreed to.
	Clause 53 [Offences relating to disclosure or use of information]:

Lord Warner: moved Amendment No. 39:
	Page 46, line 36, leave out "51(3)" and insert "(Protection of personal information disclosed for purposes of proceedings)(2)"
	On Question, amendment agreed to.
	Schedule 4 [The Appointments Commission: supplementary]:

Lord Warner: moved Amendment No. 40:
	Page 75, line 34, after "may" insert—
	"(a) prescribe conditions which must be satisfied in relation to persons before they are appointed as health and social care commissioners;
	(b) make provision as to the circumstances in which persons are disqualified for being health and social care commissioners;
	(c) "

Lord Warner: My Lords, Government amendments Nos. 40 and 41 are minor amendments to allow those appointed to the Health and Social Care Appointments Committee to be treated in the same way as the non-executive members of the appointments commission. Schedule 4 provides for regulations prescribing the conditions and disqualifications that apply to the non-executive members of the commission. These regulations may also make provision for the terms on which non-executive members are appointed. Similar provision has also been made for regulations to make provision for the terms on which the health and social care commissioners are appointed. However, the power to make regulations prescribing conditions and disqualifications has not been replicated.
	At least one, and up to four, of the health and social care commissioners must also be appointed as a non-executive member. Under the terms of the Bill as currently drafted, therefore, it would be possible to prescribe the conditions and disqualifications that applied to those commissioners who were non-executives but not to the remaining commissioners. These amendments therefore allow conditions and disqualifications to be applied to all the health and social care commissioners. Government Amendments Nos. 42, 43, 47 and 48 are purely drafting technical amendments. I beg to move.

On Question, amendment agreed to.

Lord Warner: moved Amendments Nos. 41 and 42:
	Page 75, line 36, leave out "regulations may in particular make" and insert "provision that may be made in relation to the health and social care commissioners under sub-paragraph (5)(c) includes, in particular, "
	Page 77, line 15, leave out "NHS bodies other than Special Health Authorities" and insert "Strategic Health Authorities, Primary Care Trusts or NHS trusts"
	On Question, amendments agreed to.
	Clause 71 [Interpretation]:

Lord Warner: moved Amendment No. 43:
	Page 55, leave out line 18.
	On Question, amendment agreed to.

Lord Palmer: moved Amendment No. 44:
	After Clause 73, insert the following new clause—
	"PRESCRIPTIONS: LABELLING SHOWING ACTUAL COST
	(1) The National Health Service (Charges for Drugs and Appliances) Regulations 2000 (S.I. 2000/620) are amended as follows.
	(2) After regulation 11 insert—
	"11A PRESCRIPTIONS: LABELLING SHOWING ACTUAL COST
	(1) The packaging of any drugs or appliances supplied in accordance with regulations 3 to 6A shall carry a label showing the full retail cost of those drugs or appliances.
	(2) Paragraph (1) applies irrespective of whether—
	(a) there is an exemption from charging under regulation 7 or 7A, or
	(b) a valid exemption certificate under regulation 8 is in force.""

Lord Palmer: My Lords, first, I should like to apologise to the Minister and the House for not moving this amendment and my next amendment in Grand Committee. It was due to a long-standing family commitment. For many years, I have thought that it is important for patients to realise what good value they are getting when they get a prescription over the counter. This amendment is wonderfully simple and will cost absolutely nothing. All the pharmacist will have to do is press an extra button on the computer, which will give the complete value of the medicine being dispensed.
	I also believe strongly that if the true value was on the face of a prescribed medicine, it would encourage people to finish their drugs. I am sure that the Minister is aware that an enormous number of drugs simply do not get finished. That often means that a patient will have to return to the doctor, say, two or three months later to have a repeat prescription. It is also important for patients to realise the incredible value for money they are getting. I have had quite a postbag on this amendment. Indeed, in some countries, when people are discharged from hospital they are given a bill which says how much it technically would have cost—that is, the cost of the theatre and their stay in hospital, and the anaesthetist's and surgeon's charges. I do not suggest that we should do that as it would be fairly bureaucratic and would indeed cost money. The joy and ease of this amendment is that it would cost nothing and would be simple to put into operation. I beg to move.

Earl Howe: My Lords, the noble Lord, Lord Palmer, has made an extremely powerful case with which I find myself immediately in sympathy. It is one of life's truths that what we do not have to pay for we do not value. We have all benefited during our lives from the National Health Service. I am quite sure that we have all appreciated the treatment that we have received. But the noble Lord is right: we would appreciate it all the more if only we were made aware of the cost of the treatment for which the taxpayer was picking up the bill.
	Many people would be shocked if they knew what their medicines cost. Some drugs, as the noble Lord mentioned, are expensive in most people's terms. However, some drugs cost less than the prescription charge. It would undoubtedly benefit us all if patients of the NHS were to be more cost conscious. Like the noble Lord, I strongly suspect that there would be far less wastage and far greater rates of compliance. I am told that 50 per cent of prescribed medicines are never taken, which is a huge rate of wastage. I should be most interested to hear what the Minister has to say in response to the noble Lord's very cogent arguments.

Lord Monson: My Lords, I have added my name to this amendment because, like my noble friend Lord Palmer, I believe that waste and over-prescribing in the NHS are a tragedy that diverts funds from urgently needed medical care. I refer in particular to those medicines which have a short shelf life, or which are dangerous if taken for more than, say, 10, 14 or 21 days. An example of those would be steroid formulations. The latter are normally dispensed in excessively large tubes or other containers so that up to 90 per cent goes to waste. If over a reasonable period of time enough patients were made aware of this, surely pressure could be brought to bear on the manufacturers to dispense their products in more realistically sized containers.

Lord Warner: My Lords, I certainly agree with the noble Lord, Lord Palmer, that patients should be as well informed as possible about the NHS services they receive to enable them to make informed decisions about their treatment. Making them aware of the cost of their prescription medicines would probably contribute to that and might reduce waste if patients are less inclined to order repeat prescriptions that are not required. However, while I am sympathetic to some of the underlying arguments behind the new clause, I have to say to the noble Lord that life is not quite as simple as he suggests and that there would be a number of practical problems, which mean that I am unable to support it.
	First, changes to primary legislation are not required in order to effect the change the noble Lord intends here. The amendment would enshrine a regulatory change in primary legislation with no flexibility to amend the regulation by secondary legislation if that were required in the future. That is of particular concern because the effect of this measure on patients is as yet unknown. It may, for example, discourage some from taking their medication—a particular risk among elderly patients, I should think. Further, we may find that providing information on the label may not be the most appropriate way to identify the cost to a patient.
	Secondly, the scope of this amendment means that it would affect many more areas of the NHS than just prescriptions dispensed by a pharmacy or a dispensing doctor in primary care. It would affect, for example, prescriptions dispensed by appliance contractors and out-of-hours service providers, prescriptions dispensed to hospital outpatients, treatments from walk-in centres, as well as those resulting from patient group directions. So it would range widely over a varied set of circumstances relating to patients. This would add to the complexity and cost of implementing such an arrangement.
	I have to say to the noble Lord that this is not a cost-free option. All dispensing contractors and suppliers of medicines would need to have mechanisms in place to establish a price and to label their medicines appropriately. In most cases this would mean upgrading their computer software to print prices on dispensing labels, and computer pricing databases would need to be kept up to date. It is also expected, especially to begin with, that patients would ask about the price indicated on the label. Given that, I think that I have said enough to suggest that simply pressing a button would not be the way one could introduce this measure. I have further arguments along these lines but I will not delight the noble Lord with them. However, I am happy to give him a fuller set of arguments.
	Lastly, I want to point out that what is meant by the "full retail cost" is not clear. While suppliers publish a list price for a product, that is not necessarily the cost to the NHS of supplying it to the patient. The cost of supplying a product to the patient from a dispensing contractor, for example, would need to take into account any service fee provided to the contractor, along with any discount arrangements and additional expenses that may be claimed. Dispensers would not be in a position to know all these details, so further practical problems would arise in that area.
	On balance, I believe that the amendment should be rejected because of its legislative inflexibility, the risk that it may discourage some patients from taking vital medicines, and the very considerable practical problems and costs which it would create. I am sorry to disappoint the noble Lord in that response, but life is just a bit more complicated than he may have thought when he tabled the amendment.

Lord Palmer: My Lords, I am, naturally, extremely disappointed. After the noble Baroness, Lady Royall, and I had conversed in the Corridor about this, I thought that the amendment would meet with a certain amount of government acceptance. I shall read very carefully exactly what the Minister said. With the greatest possible respect, I think there was rather a lot of civil servant jargon in his reply and it was rather difficult to understand exactly what he was trying to get at.
	Before I withdraw the amendment, perhaps I may ask the Minister whether he will be kind enough to spare me 10 minutes in his office before we come to Third Reading because I should like to explore this matter in a little more depth.

Lord Warner: My Lords, I shall have to consult my diary. I am always delighted to meet Members of the House on all kinds of issues. I think the noble Lord does me a disservice in saying that I am just trotting out the Civil Service brief. There are some very serious practical problems involved in this and he needs to understand them. I am happy to write to the noble Lord to see whether I can convince him, but this matter is certainly not as straightforward as he thinks in terms of implementation.

Lord Palmer: My Lords, I apologise most sincerely if I paid a disservice to the Minister because he knows that I hold him in high regard. I look forward very much to receiving perhaps the briefest outline of what he was trying to convince me. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

Lord Palmer: moved Amendment No. 45:
	After Clause 75, insert the following new clause—
	"TAX RELIEF ON PREMIUMS FOR MEDICAL INSURANCE
	(1) Where an individual makes a payment in respect of a premium under a contract of private medical insurance, it shall be deducted from or set off against his income for the year of assessment in which it is made for the purposes of calculating his liability to income tax.
	(2) In this section—
	(a) a premium, in relation to a contract of insurance, is any amount payable under the contract to the insurer,
	(b) a contract is a contract of private medical insurance where—
	(i) it either provides indemnity in respect of all or any of the costs of all or any of the treatments, medical services and other matters for the time being specified in regulations made by the Secretary of State, or in addition to providing indemnity of that description provides cash benefits falling within rules for the time being so specified,
	(ii) it does not confer any right other than such a right as is mentioned in sub-paragraph (i) above, and
	(iii) the premium under the contract is reasonable."

Lord Palmer: My Lords, I accept that this amendment is perhaps a little more controversial. The madness behind this thinking is that if more people were able to take out private medical insurance, this would in theory reduce the waiting lists in the National Health Service. I know from my own experience, despite the fact that I have mega claims every year—or, at least, I have done in the past—that my private medical insurance is one of the highest expenditures I have in the whole year.
	One must not forget that the general public spent nearly £7 billion on private healthcare in 2003, which was literally four times less than it was 10 years ago. I accept that this is controversial and, of course, a Treasury matter—I dare say the Minister will not be able to give me much joy—but, none the less, I thought it was worth airing because I am sure that at the end of the day it would reduce the time that people have to wait for care under the National Health Service. I beg to move.

Lord Warner: My Lords, I notice that the Conservative Front Bench did not rise to support this amendment.
	I can reassure the noble Lord, Lord Palmer, that the Civil Service did not have to write any speech for me on this issue. This is clearly not the Government's policy. Such a subsidy for private medical insurance would be ineffective, inequitable and inefficient. The Government abolished tax relief on private medical insurance for the over-60s in 1997. The Institute for Fiscal Studies found that the tax relief introduced in the 1990s failed to generate increased demand for private health insurance. Other industry commentators have supported this conclusion. Introducing some form of tax relief or other subsidy for those who use the private sector would definitely conflict with the Government's belief that the best way to use resources and provide healthcare is through a tax-funded health service which is free at the point of use. This is where the Government will continue to focus their healthcare spending.
	Furthermore—this is absolutely critical and the noble Lord needs to reflect on it—tax relief for private medical insurance would be inefficient as it would cost £1 billion in tax relief just for those who already have private health insurance. It is a dead weight cost. That is the equivalent of losing 15,000 GPs, 35,000 nurses or eight hospitals. In the unlikely event that it generated extra demand for private health insurance, it would also risk drawing skilled doctors and nurses away from the NHS to the private sector.
	I think I have said enough to convince the House that the Government are wildly unenthusiastic about this amendment. I was rather hoping that we could have more sport through noble Lords on the Conservative Front Bench standing up and supporting this way of spending £1 billion.

Lord Palmer: My Lords, as the Minister mentioned a moment ago, what with Wimbledon fortnight, I am sorry that the Opposition Front Bench has not been more supportive of this amendment, but I understand why. I thank the Minister for his clear thinking on it and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 79 [Orders and regulations]:

Lord Monson: moved Amendment No. 46:
	Page 60, line 41, after "section" insert "2,"

Lord Monson: My Lords, at first glance, this may seem like a purely technical and perhaps even trivial amendment. It is nothing of the sort. If it is agreed, it has the potential, first, to save the livelihood of a number of licensees who may be struggling financially, perhaps because they are sited in out-of-the-way locations and, secondly, to make all the difference to the comfort and well being of those 45 per cent of pub customers who enjoy a pipe, cigar or cigarette with their pint.
	The amendment effectively relates to the question of what constitutes "substantially enclosed", which are places where, if the Bill remains unamended, smoking will no longer be permitted. When this issue was raised in Grand Committee, the Minister argued that the precise definition of "substantially enclosed" would be highly technical and accordingly best left to the negative resolution procedure—in contrast, let it be noted, to all the other proposed regulations in the Bill. However, he then revealed that the revised regulations—revised since last summer—that the Government had in mind for England were not at all complex or technical, but very simple and straightforward. They state that at least 50 per cent of the wall area of any room or other space to be exempted from the smoking ban would have to be open to the wind and rain. That applies to England only. The Welsh, through the medium of the Welsh Assembly, will be allowed to decide on their own formula. They could resolve that only 20 per cent to 25 per cent of the wall area needs to be open, or at the other extreme, that 70 per cent to 75 per cent of the perimeter wall must be exposed to the elements.
	We must concern ourselves this evening solely with England. We—by which I include the noble Baroness, Lady Boothroyd, who strongly supports the amendment and would have added her name to it had she been able to be present—submit that it is not necessary to declare that as much as 50 per cent of wall space must be open to the elements in order to protect employees. We should remember that, as it stands, the Bill will bite even where there are no employees. For example, it will hit a small partnership or even a husband and wife team, where both parties enjoy a cigarette equally. The Bill insists that they be protected from one another even if they have no wish to be so protected.
	The Government will no doubt argue that having 50 per cent of wall space open to the elements is unlikely to cause a problem on most summer days and on many late spring and early autumn days as well. I would not disagree. However, the winter months will be absolute hell—if hell can embrace being half frozen to death. High-level radiant heaters can help on a cold, still day when there is no wind or rain, but we do not get many such days in our Atlantic climate.
	The problem is that this is a Henry VIII clause. I can well imagine the caustic comments that our late good friend Jack Simon, Lord Simon of Glaisdale, would have delivered had he still been with us. Henry VIII clauses deserve the closest parliamentary scrutiny. Giving both Houses more indirect input into the final regulations via the affirmative procedure would not necessarily result in a more equitable solution but it could, whereas the negative procedure would rule out any chance of effective parliamentary pressure.
	I hope that the Government will reconsider and accept this amendment, not least because it will rectify an anomaly, in that all the other regulations proposed in the Bill, many of relatively minor importance compared to this one, are subject to the affirmative procedure. If, sadly, they do not feel able to, I hope that the official Opposition will. For many years now, the Conservative logo has been the torch of freedom—or that is what I interpret it to be. One has read that the present leadership considers that logo to be out of date and is considering replacing it. I trust that that is not indicative of any weakening of enthusiasm for individual rights and freedoms—in particular, the individual rights and freedoms of unfashionable minorities. If the Government hold firm, I hope that the Opposition will join us in the Division Lobby. I beg to move.

Lord Stoddart of Swindon: My Lords, I support this amendment on the basis of the arguments that have just been advanced by the noble Lord, Lord Monson, and the arguments advanced during the long debates in Grand Committee. The impositions on smokers and on publicans and restaurateurs are very severe. The Minister will remember that throughout Grand Committee those of us who opposed these provisions stated time and again that there was a better solution to what was being proposed—that is, the separation of smokers from non-smokers. That issue still rankles and is still being argued out even now. To suggest that the regulations that will state what is enclosed and not enclosed should be agreed by negative resolution adds insult to injury. It is important and necessary that when these regulations come before this House and the other place we have a good debate under affirmative procedure rather than having to pray against the regulations which are put before us.
	The Government are increasingly using Henry VIII clauses, which I believe is altogether reprehensible. In a matter of this sort, when individual freedoms are not just under threat but going to be lost, the least the Minister could do is to say that under all those circumstances the regulations will be brought forward in an affirmative order, rather than us having to pray against an order, so that Parliament, this House and another place are well aware of the seriousness of the regulations, can debate them properly and—if necessary, in this place—vote against them.

Earl Howe: My Lords, I assure the noble Lord, Lord Monson, that the commitment to liberty and individual rights in the party which I have the honour to represent is no less strong now than it has always been. However, I am not sure whether voting for or against this amendment should be seen as a particularly good bellwether of that political stance. I should have thought that what matters most in this context is the early publication of the Government's intentions on the definitions. We shall debate that issue in a moment or two.

Lord Warner: My Lords, we have extensively discussed the issue of the definition of "enclosed spaces" before, both in Committee and on Report. I do not intend to go over those issues again. The noble Lords, Lord Monson and Lord Stoddart, have regularly invoked poor old Henry VIII, who I often think is a slightly misunderstood man. They say this is a Henry VIII clause. As I understand it, such clauses allow you to amend primary legislation through secondary legislation. These provisions do not do that, and I am not aware of any Henry VIII powers in Part 1 of Chapter 1 of the Bill.
	The Government have accepted that a significant number of regulation-making powers should be subject to the affirmative resolution, and they are set out in Clause 79 of the Bill. The noble Lord, Lord Monson, tried to tempt me at an earlier stage into giving him advance notice of what the Government's reaction to this amendment was likely to be, and I succumbed. I will not disappoint him. I have already indicated our lack of sympathy for this amendment.
	I reassure noble Lords that the Government will undertake a full consultation on the draft regulations to be made under this Bill. The definitions in the regulations covered by this amendment will be part of that consultation. I have made it clear that we intend to follow the definitions in this area in Scotland's smoke-free legislation. I assert again that definitions of "enclosed" and "substantially enclosed" will be technical in nature, and it is usual for such technical regulations to be subject to the negative resolution procedure. That is not just my view; I remind the House again that the Delegated Powers and Regulatory Reform Committee were content with that approach. I also have some sympathy with the noble Earl, Lord Howe, that this is not likely to be the bellwether issue on freedom and liberty in this country.

Lord Monson: My Lords, I am grateful to all the noble Lords who have contributed to this short debate. I shall take the Minister up on one point. He said that a significant number of regulations in the Bill will be subject to the affirmative procedure. Actually, they all will, with the exception of this one. As I said earlier, if this amendment is agreed to it will be correcting an anomaly. I am sorry the Government have not budged. They have not budged very much at all in our proceedings on this Bill. There have been a couple of minor concessions, but nothing to write home about.
	It is not just because I have had a nightmare journey getting here due to the King's Cross fire, but because I am convinced that this amendment, if it is passed, has the potential to benefit to a significant degree a large number of perfectly respectable, law-abiding people who will otherwise lose out, that I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 46) shall be agreed to?
	Their Lordships divided: Contents, 41; Not-Contents, 143.

Resolved in the negative, and amendment disagreed to accordingly.
	Schedule 8 [Minor and consequential amendments]:

Lord Warner: moved Amendment No. 47:
	Page 87, line 35, leave out "1" and insert "2"
	On Question, amendment agreed to.
	Schedule 9 [Repeals and revocations]:

Lord Warner: moved Amendment No. 48:
	Page 89, line 39, column 2, leave out "1" and insert "2"
	On Question, amendment agreed to.
	Clause 83 [Commencement]:

Lord Warner: moved Amendment No. 49:
	Page 63, line 2, at end insert ", and
	(e) (except for section 36(2)) any other provision of this Act so far as it—
	(i) confers power to make an order or regulations, or
	(ii) defines any expression relevant to the exercise of any such power.
	Subsections (2)(b) and (3) to (6) have effect subject to paragraph (e)."

Lord Warner: My Lords, government Amendment No. 49 commences all provisions in the Bill containing regulation and order-making powers, including any definitions relevant to the exercise of any such powers on Royal Assent. I originally tabled this amendment in Grand Committee, but my noble friend Lady Royall agreed to withdraw it in order to give absent friends—if I may put it that way—the opportunity to hear the explanation at Report stage.
	There is a convention that the provisions of an Act of Parliament should not normally be commenced until at least two months after Royal Assent. The purpose of the convention is to ensure that those who are affected by a legislative change have sufficient advance warning of that change in legislation to be able to adjust their behaviour accordingly. This is conducive both to ensuring that the law is applied in a fair way and to preserving legal certainty.
	In this respect, the Health Bill will be no exception, with Clause 83(1) setting out just a few technical provisions that are needed mainly to make the Act, which will come into force on Royal Assent, work. The provisions in Clause 74, on "Transfer of criminal liabilities", will also come into force on Royal Assent, as it is entirely in the public interest for there to be no undue delay in the provisions taking legal effect.
	However, the Government's view is that the commencement of regulation-making powers, either on Royal Assent or shortly after, does not breach the convention, provided that the coming into force date of the regulations does not fall within the two-month period governed by the convention. It is only when the regulations come into force that they have any legal effect.
	As I am sure the House will appreciate, it is often desirable to be able to make regulations well in advance of the main provisions of an Act coming into force. For example, in relation to the smoke-free regulations permitted under Part 1, Chapter 1, it is clearly in the interests of industry to have sight of the final content of the regulations as far in advance of the summer 2007 implementation/coming-into-force date as is possible. It would, therefore, make no sense if regulations were ready to go, but could not be made or, in the case of any affirmative regulations, scrutinised by Parliament, until two months after Royal Assent. That would be to no one's benefit.
	The Bill, as currently drafted, would already allow us to commence such regulation-making powers early through the laying of separate commencement orders—in other words, orders that simply switched on the powers to make regulations in advance of the main provisions being commenced. However, we believe that such an approach would be unnecessarily bureaucratic and unhelpful to the reader of the Act, who would be required to search out extra commencement orders which did nothing apart from switch on regulation-making powers.
	Amendment No. 49, therefore, automatically "switches on" all regulation and order-making powers within the Bill on Royal Assent. We believe that this is a much less bureaucratic approach than going down the route of individual commencement orders and will provide greater clarity to the Act. Of course, in line with the convention, any regulations would not have a coming-into-force date sooner than two months after Royal Assent.
	Given that no one stands to gain anything from the switching on of regulation-making powers through separate commencement orders, we have decided to try to apply the amendment to all subordinate legislation within the Bill, with the exception of Clause 36(2). The Scottish Executive have indicated their wish to retain control over when that provision is commenced.
	It is important to emphasise that the making of regulations is not the same as the coming-into-force date of regulations. The amendment does not permit us to do anything that we cannot already achieve through other means; it is simply about removing an unnecessary layer of bureaucracy and providing greater clarity to the Act, as the reader would not be required to search out extra commencement orders which did nothing more than switch on regulation-making powers.
	Finally, it is also worth adding that a similar provision was included in the Health and Social Care (Community Health and Standards) Act 2003. I am not sure why we did not include such a provision in the Bill from the outset, but it is before us now, and with the explanation that I have given at some length, because noble Lords were concerned about the matter, I hope that noble Lords will support the amendment. I beg to move.

Earl Howe: My Lords, I am more than willing to oppose the Government at every suitable opportunity, but this is a case where I urge your Lordships to agree to what is now being proposed. I have had extensive discussions with the British Beer and Pub Association, which represents about 60 per cent of pubs and bars in the country. It is anxious to see two things, above all, as regards the smoke-free provisions of the Bill. The first is the publication of the draft regulations at the earliest possible opportunity. The association wants clarity about what is being proposed and a reasonable length of time in which to work with the Government to sort out any points of difficulty that may arise in the detail. The amendment is wholly conducive to that wish and, on that count, is to be welcomed.
	However, the second thing that the trade is anxious to see is a sensible and workable implementation date for the regulations. If it is to be a date in 2007, as the Government have previously indicated, there are several relevant points for consideration. The first is that, as we debated in Grand Committee, many pubs will wish to make provision for smokers by means of outside shelters which conform to the rules of what is deemed to be an unenclosed space. Many of these extensions and additions will require planning consent. It will be necessary to submit planning applications for that purpose and, alongside that, many pubs will also need to submit applications to vary the conditions of their licence.
	It is a fact that the smaller local authorities do not have the resources to deal with large numbers of applications at once, but 2007 brings added complications because, in the spring of that year, many areas of the country will have across-the-board local government elections. In those circumstances, next year no planning decisions will be taken from about the middle of March until the third or fourth week of May. If the pubs are to have a proper chance of having their planning and licensing applications considered and dealt with by the time the smoke-free regulations come into force, they need not only the earliest possible publication of the draft regulations but also a recognition that the time available in local planning departments in the first part of next year will be much reduced compared with normal. Indeed, prior to that, we need to remember that over Christmas many planning departments cease to function properly for the best part of a month.
	That is why I ask the Government to rule out any possible thought that the smoke-free regulations might be brought into force before July of next year. I seriously suggest that, if they are thinking of the end of May—one rumour that is going about—that is unreasonably early. If the draft regulations are not published until the late autumn or early winter of this year, then implementation at the end of May will mean an interval of seven or eight weeks in which pubs will need to draw up proposals, submit them and have them considered and dealt with. A date in July would provide a more workable interval, assuming early initial publication of the regulations, and I very much hope that the Government will agree to that.

Lord Stoddart of Swindon: My Lords, I have listened to the Minister and the noble Earl, Lord Howe, and, as the Government and the Opposition agree about the amendment, I am not going to oppose it. If the noble Earl, Lord Howe, can get an assurance from the Minister that implementation will not take place until July 2007, then, although I should prefer it to be July 2008—the preferred date of the right honourable Mr Reid when he was the health Minister—I would be altogether satisfied with that.
	I want to raise one point. I am not entirely clear about what will happen in this respect. Landlords of pubs, restaurateurs and so on are entitled to know in advance exactly what they are required to do. That is fair enough, but Clause 4 continues to worry me, as it worried Members of the Grand Committee. It appears that the Minister has now announced that Clause 4 could be used for banning smoking in the entrances to offices, in bus queues and in bus shelters. That takes us further than we thought the Minister was going in Grand Committee.
	I wonder whether there will be consultation with those who might queue for a bus, those who operate bus shelters and those who have office doors. I do not know what will happen if smokers are banned from smoking outside office doors. It seems to me that that is carrying smoke-free places to a ridiculous degree. Perhaps the Minister will comment on that aspect. I am sure he does not want to appear to be introducing ridiculous legislation, but I can assure noble Lords that most people to whom I have spoken think that that is taking things a little too far.

Lord Warner: My Lords, first, I shall deal with the points raised by the noble Earl, Lord Howe. I can assure the noble Earl that the draft regulations will be published very soon. The timescales, much further into the year, of which he may have been thinking, are probably not right. I cannot give him a precise date, but it will be very soon. It is worth reiterating that we have already announced many definitions here, as in Scotland, so that people can begin the planning work. I cannot give him—I suspect the noble Earl would not expect me to—a categoric assurance about July 2007; at present, I can say nothing more than the summer of 2007. We are talking to the industry about implementation, including dates. An announcement will be made as soon as possible, but I cannot go further than the position we have already reiterated. The summer of 2007 is the period that we have in mind.
	The noble Lord, Lord Stoddart, raised the issue of Clause 4. I believe I am a slightly misunderstood man. Earlier during Report stage, I put forward limitations on the provisions in Clause 4. I was asked about the circumstances in which the regulations might be applied—I emphasise "might be applied". They would have to pass a significant risk test in the amendment that we put forward, so we have made Clause 4 more restrictive in its regulation-making capacity than was originally proposed. I was not expecting a great deal of thanks from the noble Lord, Lord Stoddart, but I thought I should correct the record.

Lord Stoddart of Swindon: My Lords, I am most obliged to the Minister. If he looks at our previous proceedings, he will find that I expressed my gratitude for the small concessions he brought forward.

Lord Warner: My Lords, I am grateful for the noble Lord's recognition of the powerful concessions that we made on Clause 4. I can also tell him that we wish to proceed with all the other arrangements for a comprehensive ban, for which we are aiming to introduce changes by the summer of 2007. It may put a spring in the step of the noble Lord when he leaves the House if I say that it is not our intention to use any powers in Clause 4 as part of that process. We will wait and see how things go before taking any action under Clause 4, and would certainly consult fully if we did so but on a totally different timescale. I remind the noble Lord that any regulations made under Clause 4 would be subject to the affirmative procedure. I hope that gives him some assurance that we do not have up our sleeves a Clause 4 plan which we are trying to implement by summer 2007.

On Question, amendment agreed to.

Lord Warner: moved Amendment No. 50:
	Page 63, line 16, leave out "paragraphs 24(a) and 43" and insert "paragraph 24(a)"

Lord Warner: My Lords, Amendments Nos. 50 to 56 are technical drafting amendments. I do not think that I need to go into any more detail; they are self-explanatory. I beg to move.

On Question, amendment agreed to.

Lord Warner: moved Amendments Nos. 51 to 56:
	Page 63, line 17, leave out "those paragraphs" and insert "that paragraph"
	Page 63, line 29, leave out "and Schedule 3" and insert ", Schedule 3 and paragraph 43 of Schedule 8"
	Page 63, line 29, leave out from "bodies" to end of line 30.
	Page 63, line 32, leave out paragraph (f) and insert—
	"(f) so far as relating to Welsh NHS bodies, any provision of Schedule 9 which repeals or revokes an enactment amending or repealing section 98 of the 1977 Act, and"
	Page 63, line 34, at end insert "(d),"
	Page 63, line 35, at end insert—
	"In this subsection "Welsh NHS body" has the meaning given by paragraph 2 of the Schedule 12B inserted by Schedule 3."
	On Question, amendments agreed to.

Children's Homes

The Earl of Listowel: rose to ask Her Majesty's Government what is their strategy for children's homes.
	My Lords, I hope it may helpful if I first provide some context for the subject of this debate, the evolution of children's homes and their international context. I shall then examine some of the strengths and weaknesses of current government policy. Underpinning this is a concern that Her Majesty's Government take a more strategic grasp on this challenging area of policy. I shall read from my notes, because there is a lot of ground to cover in a short time.
	A turning point in the history of children's homes was the Seebohm report of 1968. There followed the move from specialist to generic social care. According to Wolmar, the author of Forgotten Children: the Secret Abuse Scandal in Children's Homes, this signalled the loss of specialism in residential childcare. I hear from those working at that time that many of the best managers in children's homes chose then to move from residential care to management of the new social service departments. It was intended that residential childcare workers would be required to have the new social work qualification. That did not happen, perhaps because of the cost it would have incurred.
	At the same time, there was a large increase in children coming into care and, by 1975, there were 34,600 children in residential care. That same year, a period of national austerity began. Starved services and poorly qualified and supported staff provided part of the context for the abuse scandals that followed: Beckford, Pindown and Kincora, to name but a few. A regular attender of the Associate Parliamentary Group for Children and Young People In and Leaving Care, Mark Belsham, described to me his experience of a children's home in, I think, the 1970s. One of the staff regularly took one of the boys from the dormitories at night. The boy later hanged himself, and was discovered by Mark Belsham and his fellow residents. In his account, Christian Wolmar expressed his surprise that no audit was kept of the number of abuse cases over this time.
	Moving to the 1990s, Norman Warner, now the noble Lord, Lord Warner, produced his report on staff recruitment and training, Choosing with Care, and Sir William Utting produced his two reports. In his opening remarks to People Like Us, Sir William urges that the best safeguard for children is an environment of overall excellence. The new Labour Government took their cue from Sir William and entitled their first ring-fenced spending programme on looked-after children Quality Protects. Sir William Utting produced a follow-up report, finding that safeguards had significantly improved and that children's homes were far more open. He emphasised the need for looked-after children to have a range of appropriate placements, including good quality residential placements. Again, the Government took their cue from him and entitled their second programme of investment and change to commissioning Choice Protects.
	However, partly because the reputation of children's homes had become so tainted, the number of placements has now declined to 8,550. Generally speaking, these are now the children who have experienced the most disruption and who are the most challenging to work with. Yet, in 1998, 70 per cent to 80 per cent of staff had no relevant qualification. The Government have set a target of 80 per cent of the workforce to have an NVQ level 3. I would be grateful if the Minister will write to me with details of how that is progressing.
	Perhaps I may now move from the historical to the international context. Across the English-speaking world, where standards of staff qualifications tend to be variable and are often poor, there are similar histories of abuse. Other than in Belgium, I am not aware of such patterns in Europe. The Department for Education and Skills has funded research into residential childcare in Denmark and Germany, where staff are known as pedagogues. About two-thirds of staff in Danish children's homes have completed a three-year higher education qualification. There are few job vacancies, and it is a highly esteemed profession. In France, Germany and Denmark, it seems to be fair to say that they place their best professionals with their most vulnerable, needy children. About 50 per cent of looked-after children in those countries are in residential care—they have such faith in it. In France, at least, the main focus is on reintegrating children with their families. The expertise of the home is used to support parents and children. Where reintegration is not possible, young people may continue in their residential home into their late 20s, if they wish to do so.
	Researchers asked pedagogues what was their first duty to their children. Upwards of 80 per cent of Danes said that it was to support their children. About 95 per cent of Germans gave a similar response, as did about 41 per cent of English residential childcare workers. By contrast, 59 per cent of the British placed first the need to follow procedure. That suggests that less-qualified English staff lack the confidence to provide the emotional support to their children that Germans and Danes can. When I told a German pedagogue that English residential childcare workers were directed not to travel alone in a car with a child, he laughed in surprise. I have spoken with very experienced practitioners in this country, and when I saw one of them give a child a hug, he felt that he had to give an explanation for his behaviour.
	So, that is the context. A lack of strategic thinking led to a situation in which our most vulnerable children were cared for by our least qualified and supported carers. The situation must at least have contributed to the widespread historic abuse of children in care.
	What have the Government done to remedy the situation? I have already mentioned the very welcome Quality Protects and Choice Protects programmes. The establishment of the Commission for Social Care Inspection has been welcomed by children's homes managers because it enables them to have more control of the admission of children and allows them to ensure a balanced clientele, rather than simply having to respond to crisis admissions from local authorities. There are many highly experienced and dedicated people in the field, and research suggests that morale is remarkably good given the circumstances. Even so, vacancies are at upwards of 11 per cent in children's home, and double that in London. That is significantly higher than vacancy rates for family and child social workers.
	The introduction of children's trusts and their boost to multi-agency working should strengthen the role and effectiveness of residential childcare. The promotion of multi-disciplinary team working—teachers, nurses and social workers functioning within a children's home—is much to be welcomed. The Government's funding of the National Centre for Excellence in Residential Child Care is also most welcome.
	However, what are the current weaknesses? The most immediate and obvious is the apparent ineffectiveness of the strategy for commissioning good-quality placements. Short-term thinking seems to be allowing some of the bad providers to drive out some of the good. The Independent Children's Homes Association says that,
	"many of the models that influence purchasing strategies in a significant number of areas are more applicable to the purchasing of manufactured goods than to the purchase of childcare resources".
	The ICHA believes,
	"that there is a crisis in childcare fuelled by very significant examples of appalling childcare practice where the needs of the budget holder or performance targets override the interests of the child".
	That concern is widely held within the sector and not just by the independents.
	I shall conclude as I see the time. I look forward to hearing my noble friend Lord Ramsbotham perhaps discuss the role that children's homes can play in keeping children out of custody. I also hope that the Minister will find this debate helpful in the preparation of the forthcoming looked-after children Green Paper. Looking back, one can see how the lack of a strategy contributed to the abuses of children in care. As I say, there is considerable concern about the commissioning of residential childcare. I hope the Minister will say what more is being contemplated to encourage regional commissioning.
	Although I welcome the NVQs in childcare, the professional capacity of residential childcare workers is still profoundly lacking. Will the Minister consider a transformation fund for residential childcare similar to that for early-years childcare workers? Residential childcare caters to such a wide range of children with varying needs. Children's homes need a clear focus and purpose. Will the Minister consider encouraging the introduction of tiered provision catering to different levels of need? I am most grateful to noble Lords who, at such short notice, will be contributing to this debate, and I look forward to the Minister's response.

Lord Ramsbotham: My Lords, I apologise for my late arrival. I was taken by surprise at the start of the debate. I hope my discourtesy will be forgiven.
	It is always a privilege to take part in a debate that has been promoted by my noble friend Lord Listowel. One has come to appreciate that the subjects he chooses are invariably relevant not just now but for the future, particularly in connection with children, who will be our future.
	The subject is the strategy for children's homes. I have to admit that my knowledge of children's homes is not great. But I have been involved with secure children's homes, which I believe should be part of the equation. One thing has worried me with the children I have come across in the criminal justice system. So many agencies are responsible for them in one form or another that there is a huge danger that any attempt at joined-up care will break down because there are so many cracks in the system through which they can fall.
	I appreciate that there is a Minister for Children sitting in the Department for Education and Skills. That gives me no concern, because she must be somewhere, but I find it surprising that the Minister for Children does not have responsibility for—for example—the operation of the criminal justice system on children. It would make sense for her to do so and then to be able to spread the influence of all the other activities connected with children into the criminal justice system, so that children receive the same treatment.
	They say that soldiers can only do things and think in threes. To prove that to be absolutely correct, I should have liked to have discussed three separate issues: first, what is the strategy for secure children's homes; secondly, what is the strategy for those who come under the criminal justice system? I decided to concentrate on the third: what is the strategy for one disadvantaged group who fall under both those categories; that is, looked-after children when they come into the hands of the criminal justice system?
	I realised when I read the statistics from the criminal justice system that looked-after children are invariably the most deprived and most socially excluded group of any taken into young offenders' institutions. I was therefore not surprised when reading the Office of the Deputy Prime Minister publication Transitions: young adults with complex needs to find that the second-highest group of young adults who access services were the 11 per cent of care leavers. The only category that beat that was homeless people. That was interesting to me, because one would feel that if the system was working properly, care really would mean care. In fact, I do not find that that is so.
	I was a member of the inquiry conducted by the noble Lord, Lord Carlile, into the use of restraint and seclusion in children's homes. During that inquiry, one thing that struck me most about all young offenders, but especially those coming from care, was the huge number of mental health problems found. It concerned me that the only secure children's home with mental health on its agenda was Orchard Lodge, near Crystal Palace, which had been run for years remarkably well by Southwark Council—as demonstrated by the fact that many of its staff had been there for a considerable time. All those concerned with looked-after children realise that continuity of care is critical. The home has now been privatised and sold off. The concern of those running it was that all the expertise that they had built up over the years would be lost.
	I mention that because, in connection with strategy, I should like to know what the strategy is for the mental health treatment of young people coming into the hands of the criminal justice system and entering children's homes.
	The issue of mental health was brought home very starkly to me when I received a copy of a publication by the National Children's Bureau on behalf of the Department for Education and Skills. I am sure that the publication is well known to the Minister. It is entitled Tell them not to forget about us. It is a paper commissioned as a guide to practice with looked-after children when they enter custody. What I found disturbing is that it states:
	"For most young people the local authority remains their 'corporate parent' and continues to have statutory and moral responsibilities for providing that young person with the support any good parent would".
	Later, in the body of the report, we find that, far from that being the case:
	"The picture that emerged was one of fragmented planning and poor outcomes. There was a tendency for the welfare approach of local authority children's services to be marginalised whilst youth justice processes took centre stage. Yet children's services are those that should be providing looked after children with holistic support into adulthood, long after the youth justice system has bowed out. This is not a criticism of the many dedicated practitioners involved with the children in the project. There were examples of effective joint working but these were achieved in spite of, rather than because of, the systems within which practitioners were operating. The children themselves expressed a real fear of being forgotten in the midst of this confusion".
	I mention this in connection with what I said at the beginning about the position of the Minister for Children because the report also highlights that part of the difficulty that arises for these children is that, if they enter the criminal justice system, they are subject to two different planning systems. That is because the Department for Education and Skills, which has responsibility for looked-after children, and the Youth Justice Board function within completely different conceptual frameworks. The DfES framework is said to be welfare, and the Youth Justice Board framework is said to be criminogenic. The danger of operating in isolation from each other is that particularly vulnerable children will fall through the cracks. It seems to me that the work done by the Youth Justice Board is always to strengthen the sentence-planning process because of the targets and performance indicators that it must meet for another ministry, while the burden of the common assessment framework under which the Department for Education and Skills works goes in a completely different direction.
	I am very sorry for the Minister, because much of what I am saying refers to another ministry and another judgment. Yet the responsibility for children, particularly vulnerable children, rests very firmly with him. I do not know whether he saw the clutch of letters in the Guardian this morning under the general title, "Protecting children from abuse", but one, from someone called Anver Jeevanjee, says that no one really seems to care for young people when they get banged up and that,
	"this is the main cause of our current juvenile delinquency and hooliganism, despite us being one of the world's richest economies".
	The letter also says:
	"The knee-jerk attitude of politicians, advertisers and parents, and demonisation by the media is largely responsible".
	Even more significant to me was the letter from the chairman of the Association of Youth Offending Team Managers, who said:
	"Youth offending teams are committed to working with others to prevent crime and antisocial behaviour"—
	which is what the noble Earl was talking about—
	"but we are battling against the flood of new legislation and new initiatives. Along with other agencies, we need to be allowed to keep our eyes on the ball, not to be constantly distracted by media-grabbing pronouncements from politicians condemning our efforts".
	That is powerful stuff. You may say that the association is not totally connected with these children but it is, because it has to pick these children up and do something with them. There is a danger at the moment that local authorities are neglecting children who are in the hands of the criminal justice system, and that their resettlement is being made more complicated as a result. I hope that when the Minister considers the strategy for children's homes, he will not forget the strategy for secure children's homes and other places where those who break the law go, because they must be included in an overall strategy for this very serious problem.

Baroness Walmsley: My Lords, I thank the noble Earl, Lord Listowel, for introducing the debate. I do not know where your Lordships' House would be without him to raise the voice of these most disadvantaged children. He does a wonderful job.
	There is some good news about children's homes. Children can enjoy living in good children's homes. Their behaviour can be significantly modified and improved in good children's homes. Some children prefer them because they feel threatened by a family environment, and they prefer to have a peer group—other young people who can understand how they feel and who feel the same way—in the same establishment. Some young people can gain education and skills and tackle long-standing health problems in good children's homes. The trouble is that not all our children's homes come up to the standards that we would all want for all our children.
	Many organisations representing children are united in the improvements they call for. They would like to see the voice of the child in care treated with a great deal more importance and the children treated as individuals with brains, feelings and wishes, and provided with more stability. They would like local authorities to stop changing the children's placements, not make them subject to policy changes in their local authority, try to reduce the turnover of staff so that children can develop strong relationships, and stop moving them from school to school.
	Organisations are also asking for more independent representation and for someone whom young people can regard as a confidante, especially when they are in trouble. Specifically, a young person who runs away from a children's home and then comes back needs someone independent who they can talk to about why they ran away and, perhaps, why they came back, and who could look at those causes to see how they might be addressed.
	On education, it is salutary to remember that we are spending £2 billion on children in care, yet only 8 per cent of them get five good GCSEs. Only 1 per cent go on to higher education. I know that the Government are turning their attention to that appalling track record. I welcome the new duties on schools to promote the educational attainment of children in care and the new duty in the Education and Inspections Bill, which has just come to your Lordships' House, to force a school to take a child who has been excluded from two other schools. We cannot have those children going around searching for a school that is prepared to take them.
	However, the issue is not just admissions. We have to remember that 60 per cent of children in public care have suffered neglect or abuse. They are very damaged both physically and emotionally, and sometimes intellectually. I often wonder how I would feel if I had been a vulnerable child who knew nothing but an abusive family or a family who found itself for one reason or another incapable of giving me the nurturing that I needed to develop. Children's development is seriously affected by these traumatic experiences, after which they are dragged away from the only family they know, inadequate though it may be. Very often—usually—the parents love their children but are unable to give them the care that they need.
	Such children are put in public care and are given a corporate parent. There is one big problem with corporate parents: you cannot cuddle them. That is why we try to find foster, substitute or adoptive families by preference for children in such care. That is right and as it should be. Unfortunately, it cannot always be done and children have to spend some or all of their time in care in residential homes.
	We cannot expect children to fulfil their educational potential if they are not at ease with themselves and the world. I believe that not enough attention is being paid to the mental health and well-being of children in public care. I am pleased that Ofsted inspections will report on how far schools contribute to the well-being of children, including their attainment, personal development, care and support. It would be nice to know that local authorities will also be assessed on the level of support that they give to those students—sadly just a few—who go to university.
	Last week I attended a meeting run by the Frank Buttle Trust and chaired, I believe, by our colleague the noble Baroness, Lady Howe. Unfortunately she is not able to take part in this debate. While it was very inspiring, it really brought home to those of us who attended how few young people go on to university from public care and what a struggle they have had to get there. It is also important, once they are at university, that they are given adequate support by their local authority. Two young people talked about how they are different because they have a flat of their own; they do not have families to go home to in the recesses. Money is short. Their experiences are different from those of the other students with whom they share lectures. Often they do not have a lot in common with them, and because so few students have been in care, they cannot easily find other students to share their common experience. They greatly appreciate a good local authority that gives them someone to turn to, thus providing a little extra support and encouragement in their studies.
	If we want to reach the Government's targets on educational attainment for children in public care, we must take several steps back from the school itself and look at what we must call the child's home context, the residential home. Many staff in care homes for children are wonderful people doing an excellent job, but like the noble Earl, Lord Listowel, I was interested to read about the approach taken in Denmark. It is a model to be followed. I read an article about the Josephine Schneider House in Copenhagen. Its approach results in an atmosphere different from that in our own residential homes, and the outcomes are also completely different. In Denmark, 60 per cent of children in public care go on to higher education, so they must be doing something right.
	What is the difference? They do not have any rules; children are treated as individuals. Staffing levels are high and the staff are well trained pedagogues. Pedagogy in this context is not just the science of teaching, but can be described as the process of nurturing the development of a child or young person based on a profound set of principles about what constitutes human flourishing and well-being. Personal creativity is emphasised, with plenty of art, music and drama to enable young people to express themselves and to acquire the capacity to make strong and easy relationships with others. One of the key aspects of staff training is how to create close relationships with the children while remaining professional at all times. In the UK it is all about targets and paper chasing, and I think we can learn a great deal from the experience in Denmark.
	Training for social work here is all about the law, procedures, targets, minimising risk and keeping children safe. We do quite well in keeping children safe once they are in public care, although there have been scandalous exceptions to the rule, but we are very risk averse and I cannot help feeling that that might be rather stifling. It gets in the way of the desirable strong personal relationships I mentioned earlier. There is a renewed interest in pedagogy among professionals here in the UK, and I wait with interest to hear what the Minister has to say about the Government's response to that renewed interest. It could indicate a new and very desirable approach.

Baroness Morris of Bolton: My Lords, I add my congratulations to the noble Earl, Lord Listowel, and I echo the comments of the noble Baroness, Lady Walmsley. This has been a thought-provoking debate with important contributions from all sides of the House on the issue of looked-after children as well as the situation in children's homes. The noble Earl took us through the harrowing histories of life for some young people in children's homes, but as always he reflected on and promoted the need for well qualified staff to lift standards. I was interested in the examples that he cited from abroad where the best professionals work with the most vulnerable, and I took on board absolutely what the noble Baroness, Lady Walmsley, said about Denmark—it sounded most interesting. As always, the noble Lord, Lord Ramsbotham, made a powerful speech on looked-after children in the criminal justice system, particularly in regard to the treatment of their mental health problems. Again, I agree with the noble Baroness, Lady Walmsley, on the damning indictment of the education results of looked-after children in our country.
	I welcome the start that has been made on the reform of standards for children's social care this June. It is clear that the industry is looking forward to change. As the chief executive of the Fostering Network said,
	"we want to make sure the new standards focus on outcomes and the experience of service users. There has been a concern that the current standards put too much focus on box ticking".
	I hope that the Minister will be able to update us on this consultation in his reply. After all, radical changes are needed to the system if it is to provide children with the best possible chance in life compared to the parents who too often have failed them.
	There are some excellent children's homes. The independent sector is now the majority provider of residential children's services, although, as we heard from the noble Earl, Lord Listowel, they are in turmoil. In the past 18 months, there have been significant shifts in the market—changes that the industry thinks have been ill thought out. But these homes provide high-quality care with dedicated and compassionate staff, the majority of which, as I have said, are in the independent sector. Evidence from the National Children's Bureau, which has a wealth of experience in residential childcare, shows, as the noble Baroness, Lady Walmsley, explained, that children can enjoy living in good residential establishments and that this can impact positively on their behaviour.
	I know from first-hand experience that some children feel safer and more secure in a children's home, where they have the camaraderie of their friends and carers and where their wariness and mistrust of adults can be patiently and sympathetically rebuilt. When I had been married for a few years, my husband and I decided to look into adopting. We had heard of two little girls, not related, who had formed a bond in care and whom the authorities would have liked to be adopted together if possible. We made all the inquiries, went through all the checks and had our home visit. We will always remember the words of the social worker as she left: "Just because you're well educated and live in a nice home doesn't mean you'll make good parents".
	Although we were put off pursuing events through our local authority, we went along to the Catholic Children's Rescue Society in Didsbury, Manchester. All the older children had made posters asking for a mum and a dad, but there was one poster from a boy in his early teens who did not want to be adopted or to go into long-term foster care because he had found happiness in his children's home and felt at home for the first time. All he wanted was a family who would have him for the weekend so that he could have a ferret. I often wonder if he found his family and his ferret—I so hope he did. I discovered that I was pregnant soon after this, and I should like to say to that social worker that I think we are pretty good parents, and our son had a ferret—three in fact.
	We on these Benches believe that in the hierarchy of childcare, however good it is, the removal of a child to a children's home should always be treated as the last resort, especially when kinship and concurrent programmes are showing such encouraging signs of success. However, we recognise that there will be individual children who will benefit from time in a children's home and that children's homes play a vital role, especially in short-term care. We also recognise that the choice of care should be dictated by what is best for the child and not by what is cheapest for the local authority. So it is in everyone's best interest—children, providers, social services, parents and extended family—that the homes are of the very best quality and offer choice and flexibility.
	It is also in everyone's interest that providers enter the market for the right reasons. As I understand it, you currently do not need planning permission if you want to set up a children's home for six or fewer children. This has led to the development of clusters of private children's homes in residential areas, creating a significant shift in the community's dynamic. This has been especially noticeable in some coastal areas, where a combination of a lack of supervision and the removal of the child from familiar surroundings has led to that child becoming involved in anti-social behaviour and petty crime—the very negative cycle that we are often trying to break in removing the child from their family in the first place.
	As I have said, there are many good children's homes, owned and run by dedicated people, but a few are tempted by the high fees that they can charge—anything up to £3,500 a week in specialist children's homes. We must be careful that those who are motivated by money rather than the well-being of the children do not give the industry a bad name. I know that that is taken very seriously by the Independent Children's Homes Association, which believes that any company that breaks the rules should be dealt with swiftly by the regulatory regime.
	As at 21 March 2006, there were 1,388 independent children's homes registered with CSCI. These include 1,257 homes run by private providers and 131 homes run by the voluntary sector. In 2005–06, 284 homes deregistered. Deregistration can occur for a number of reasons, including the voluntary closure of a home, enforced closure resulting from regulatory action, change of ownership and change in the category of service provided. However, details relating to the reason for deregistration are not recorded, so we do not know how many enforced closures there were. Could that be changed?
	Inspection of homes has greatly improved, but it could be better. There needs to be less emphasis on the number of taps and the condition of the buildings and more emphasis on the ethos and quality of care. Dame Denise Platt, the chair of CSCI, is right when she says that the Government should be bolder and more radical in reforming the ways in which children's services are inspected. But the changes to the inspection regime mark the fourth change in social work inspection in seven years and we must be careful that this does not lead to a period of instability.
	I have a few questions that I would like to ask the Minister. Not all London boroughs have children's homes and, although I am not saying that they should, there is a strong case for greater co-ordination between them, especially when it comes to specialist services for dealing with those most in need. What steps are the Government taking to improve communication and co-ordination on this front?
	As your Lordships know, each looked-after child has a reserved, named social worker who is responsible for them. But when a child is moved far away from home, it is difficult for the social worker to keep a watchful eye on them if they have to travel miles to see them. Inevitably, the quality of the care and the relationship will suffer. How are social workers expected to monitor the well-being of the children in their care if it takes a day to get to them? We often forget to thank social workers for the tireless work that they do. Although I approve of the continuity in workers seeing a case all the way through, what feasibility is there to deal with these potential added burdens?
	Despite the fact that more children are in care than at any time over the past 10 years, there is still a serious shortage of child social workers, with vacancies in the thousands. We on these Benches have always promoted the importance of placement stability, not only for children in homes but for those in fostering and adoption programmes. It is important, particularly in the most vulnerable cases, to prevent children from being constantly moved from pillar to post. How would we feel—the noble Baroness, Lady Walmsley, touched on this point—if we suffered the trauma of being separated from our families, however inadequate those families may be, and then, when we were at our most vulnerable and fragile, also lost contact with our wider family, with our friends and with all that is familiar and comforting?
	We welcome the moves that the Government have made in this respect, but the changes are not being implemented fast enough. What steps are they taking to speed up this progress? As we have discussed in relation to recent children's legislation, attachment and belonging help to give children the confidence, resilience and sense of self that they so desperately need to develop into well rounded individuals.
	Flexibility in the care of children must be the key, through concurrent planning to kinship care to children's homes. On kinship care, there have been promising reports that children in kinship placements feel loved and wanted when living with relatives. They feel normal rather than different.
	I take the opportunity in every debate that I can to sing the praises of early intervention. We should ensure that our resources go to help families to stay together and that only as a last resort should children be taken into the care of the state. But when there has to be a last resort, that care should be of a high standard and the most appropriate for that child. Our children in care deserve no less than the care that we would wish for our own children.

Lord Adonis: My Lords, the noble Earl, Lord Listowel, speaks on the issue of children's homes with immense knowledge and personal commitment, which has been reflected in all the other speeches made in this short debate. The House is grateful to him for giving us the chance to discuss this important issue this evening.
	I start with some facts. At 31 March 2005, there were around 5,700 children in children's homes in England, which was around 9 per cent of the looked-after children population. At the same time, there were 1,985 children's homes of all descriptions, providing a total of 11,360 places, representing a significant oversupply. As the noble Baroness, Lady Morris, rightly noted, the average size of a children's home is under six places, and more than half of them have fewer than five places. The private sector is increasingly dominating the market. Most homes are run by private providers, with local authorities running only 34 per cent of homes and the voluntary sector only 6 per cent. So interaction between the public and private sectors in this area and proper commissioning arrangements, about which I shall have more to say, are absolutely vital for driving up standards. The old image of a children's home as one that is directly managed by a local authority is increasingly outdated, although the state directly manages custody arrangements for some of the most vulnerable looked-after children. The noble Lord, Lord Ramsbotham, referred to that, asking a specific question to which I shall have to reply separately. They are clearly vital to the well-being of the most vulnerable group of all among looked-after children.
	Performance remains highly variable. Children's homes, on average, now meet 74 per cent of the national minimum standards, compared with 56 per cent in 2002–03, which was the first year in which the standards were assessed. So there has been improvement, but improvement varies across sectors. Almost one in five voluntary sector homes were already meeting more than 90 per cent of the standards three years ago, compared with only one in 10 for private sector homes and one in 20 for council homes. Around 27 per cent of private sector homes and 17 per cent of council homes now meet more than 90 per cent of the standards. While, therefore, the Commission for Social Care Inspection judges that there has been a threefold improvement, there remains scope for considerable further improvement in the sector.
	The simple answer to the question posed by the noble Earl is that quality improvement is the underpinning element in our strategy for children's homes. Looked-after children are among the most vulnerable and disadvantaged children in our society. They deserve and require good quality residential care to secure stability and achieve better outcomes. That is why we are looking, first, at what actions we can take to develop the residential care workforce, which has rightly been highlighted as a key priority; and why, secondly, we are reviewing and improving standards, providing guidance, empowering local authorities better to protect the interests of those in their care and, since last year, funding a National Centre for Excellence in Residential Child Care, to which the noble Earl referred. Thirdly, we have set a challenging national target for improving stability and raising educational attainment, and in the Children Act 2004 we introduced a new duty on local authorities to promote the educational attainment of their looked-after children, to meet precisely the unacceptable situation described by the noble Baroness, Lady Walmsley. Fourthly, we are looking to ensure that provision is cost-effective and that we have an effective commissioning regime in place for improving provision.
	Those are the four key elements in our strategy for improving children's homes, and I shall say more about each in turn. First, on improving the residential care workforce, we are considering further issues affecting staff working in residential settings. Our future thinking about the workforce will build on the children's workforce strategy, which identified children's social care as one of the priority sectors for reform, as the noble Earl recognised in his remarks. That work is now being taken forward as part of the Options for Excellence review of the social care workforce, led jointly by my department and the Department of Health. It is charged with identifying creative but practical actions to increase the supply, and improve the quality, of social workers and social care workers, particularly in London and the south-east, where recruitment issues have proved especially challenging. We will have more to say about this in the proposals we will set out later this year on improving outcomes for looked-after children.
	Secondly, there is the issue of raising standards. As I have noted, evidence from inspection makes clear that the quality of care provided by children's homes is highly variable. We are currently reviewing the national minimum standards for children's social services. We will consider what changes are needed to the children's homes national minimum standards to allow the responsible regulator, currently the Commission for Social Care Inspection, to act more responsively and to target its activity where it can be most effective in raising the quality of care.
	The review will consider changes to regulation and inspection so that standards properly reflect recent legislative changes and recent developments in professional practice. For example, the revised national minimum standards will need to take account of the new framework for safeguarding children introduced following the Children Act 2004 and the latest requirements to improve planning for looked-after children; for example, the requirement that all care plan reviews must be chaired by an independent reviewing officer.
	In future, fuller compliance with revised standards will ensure that providers of services for looked-after children deliver the outcomes that we expect to see for all children so that those children are offered the care needed to reach their potential. We intend to provide all stakeholders, including children and young people themselves, with the opportunity to contribute to the review process. A full public consultation will be held on all key proposals relating to these national standards once they are published.
	Thirdly, with regard to improving educational performance, I am glad to say the figures given by the noble Baroness, Lady Walmsley, have been improved upon of late. If I give the figures, the House will understand how dire, frankly, the situation remains. It is now the case that 11 per cent of looked-after children got five or more A* to C GCSE grades in 2004–05, but that compares with well over 50 per cent for the population at large. The noble Baroness gave a figure of 1 per cent in respect of higher education. The latest figures I have are that 6 per cent of 19 year-old care leavers reached university last year. Again, that is a pitifully low figure compared to averages in the rest of the population, even among the most deprived parts of the non-looked-after part of the cohort.
	The White Paper we published last year makes clear that we expect the new School Improvement Partners, who now have a relationship with all secondary schools and will do so in due course with primary schools, to hold schools to account for how well they support looked-after children, and for improving their educational outcomes—not least those in children's homes.
	We have also been consulting on new regulations giving looked-after children top priority in school admissions, thus strengthening the existing code of practice. We have now gone further than that, and, as the noble Baroness, Lady Walmsley, noted, we have introduced government amendments to the Education and Inspections Bill to allow local authorities to direct schools to admit looked-after children, not only at the beginning of the academic year, but also outside the normal admissions round. We regard that change as of key importance, because looked-after children too often change their carers, including their children's home, outside the normal academic year. Ensuring that their transition into a school that suits their needs is as smooth as possible is of great importance to them.
	These reforms will underpin the new duty on local authorities in Section 52 of the Children Act 2004 to promote the educational achievement of looked-after children. However, formal admission to a school is only the first step in ensuring that looked-after children get a decent education. Local authorities should do what any good parent would do to promote their child's educational aspirations and achievements. As corporate parents who are responsible for the placement of children, local authorities should be ensuring that providers of residential children's homes meet, if not exceed, the prescribed children's homes national minimum standards relating to the support of education. The capacity of a placement to meet the assessed educational needs of the child must be absolutely central to deciding its suitability, whether this is in a children's home or any other type of placement.
	All children's homes should have clear written education policies setting out the arrangements for ensuring regular school attendance, high-quality support in areas such as homework and reading, robust monitoring of progress relating to the content of a looked-after child's personal education plan and effective liaison between the home, school and children's services department of the local authority making the placement. As the noble Baroness, Lady Morris, said, in many cases that will involve actual visits, but there are many other ways in which those responsible in the host local authority can take a keen and active interest in the ongoing progress of children in their care. We will have more to say about that also in the looked-after children Green Paper.
	Fourthly, we are working to address major challenges in cost, quality and commissioning. The overall cost of residential care has risen from £717 million to £920 million, a rise of over a quarter, in the three years from 2001–02 to 2004–05, although the number of children placed in the residential sector remained broadly static over that three-year period.
	As I have said, evidence from inspection makes clear that the quality of care provided by children's homes is variable. However, local authority commissioners are responsible for making sure that the costs of care are related to children's outcomes. The Commission for Social Care Inspection's recent report Making Every Child Matter: Messages from inspections of children's social services makes clear that,
	"children's social services commissioning arrangements are under-developed and they have little influence over the social care market . . . Placements are overwhelmingly spot-purchased with few preferred provider arrangements and uneven cost control . . . Contract monitoring is developing, but still limited".
	This is not a satisfactory situation. The Government are promoting a number of developments in relation to commissioning and contracting. In March this year, as the noble Baroness, Lady Morris, mentioned, we launched the Joint Planning and Commissioning Framework for Children, Young People and Maternity Services, which expands on statutory guidance for the Children Act 2004. Written with the assistance of those for whom the guidance is to be used, this sets the standard for how we expect commissioning in children's trusts to look in five years' time. Every local area is producing a children and young people plan, which sets out clearly how local outcomes will improve. We are providing support for children's services commissioners, including sharing of learning, toolkits, and direct help from commissioning and procurement experts. We are also aware that the Association of Directors of Social Services is developing a national contract for the placement of children and young people in children's homes. This, we understand, will be launched later this year. We are supporting this development. I will respond in writing to the many other points that have been raised, as I have run out of time.
	In conclusion, much is being done to ensure that all children and young people living in children's homes experience high standards of care, but there is more to be done. The Government, the inspectorate, local authorities and the national centre all have key roles to play in achieving improvement. We will continue to play our part in promoting reform and improvement.

House adjourned at seven minutes before eight o'clock.